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By the Same Author. 



Oblong octavo. Morocco. $2.5' . 

Published by John Wiluy and Sons, New York. 












Copyright, 1897, 
Bt Daniel Moreau Barrixobb, 


Jobs Stokes Adams. 




fllfsocistt JusHrc of t^r JSttprrme ffourt of t^c tSLniUXi JStites» 


\ 4 


Thx law of mines has no logical existence as a separate 
branch of jurisprudence, but it is a convenient ]dirase to 
comprehend those special roles of law which have been de- 
duced by the application of general rules to the questions 
that arise as to the rights and duties of miners and mine 
owners in their relation to the land, to one another, and 
to those in contact with whom they are brought by reason 
of the business of extracting the various kinds of valuable 
minerab from the earth. 

The aim of this book is to give a complete and accurate 
statement of these special rules of law, so stated and ar- 
ranged as to furnish what the authors' experience has 
taught them to be the requirements of the active prac- 
titioner. The authors have refrained from giving their 
own ideas as to the rules that ought to be adopted, and 
from criticismg the rules that the courts have laid down, 
except when those tribunals have been so opposed to one 
another as to make it necessary to express a choice be- 
tween opposite positions. But they have constantly aimed 
to state clearly the law as it is to-day, and to furnish 
the reader with every authority and important dictum 
in support of the statements contained in the text. 

The authors have attempted to make this work as com- 
prehensive as possible, and have not confined themselves 


to the law which is applicable only to any particular por- 
tion of the country, or to mines of any particuUr kind. 
The other American books with which they are familiar 
are confined to the statutory system under which title 
to mines is acquired and mining is conducted upon those 
lands which are or have been a part of the public domain. 
The present work aims to cover this field iuUy, and also 
to deal, with equal completeness, with the questions of title 
to mineral lands, mines and minerals in those States in 
which the common law on the subject of real estate owner- 
ship applies. 

As the authors are impressed with the fact that a law- 
yer who undertakes to deal with the legal questions which 
are submitted to him by mine owners cannot be com- 
pletely equipped for the task without a certain knowledge 
of the formation and mode of occurrence in nature of the 
various kindi^ of mineral deposits, the work is preceded 
by a chapter in which these subjects are explained briefly, 
but, it is hoped, accurately and fully, and under an arrange- 
ment which is based on the classification of the subject 
required by the law. The importance of this feature will 
be especially appreciated by those whose practice Requires 
them to deal with mining properties situated upon the 
public domain, because in the application of the United 
States statutes important legal distinctions are intimately 
connected with geological or physical differences. 


Philadelphia, September, 1887. 


Tablb of Casks xvii 

Gbou>gicai. Pbsfacb •• li 


PitoPERTr nr Minerals where there has been ko Division betwebv 
IBS Ownership op the Surface and the Mineral Estate. 

L Property and Rights of the Owner of the Soil in Minerals which 

are in Place 4 

n. property in Minerals which have been severed from the Freehold . 5 
IIL Property and Rights in the Minerals of Owners of the Soil who 

have a Limited Estate 7 

A. TenanU for Life 8 

B. TenanU for Tean 15 

C. Ownen of Eqmtiee of Redemption 17 

lY. Property and Rights in the Minerals where there are Joint Owners 

oftheSoil IS 

▼. Pkopertj and Ri^ts in Mineral OU and Natural Gas dO 



OR THE Right to take them is vested in some one who is nof fHs 
Owner op the Soil. 

I. Estate in Fee Simple in Minerals in Place ••••*... Z(\ 

II. Lease of Land with Mining Rights 51 

IIL Incorporeal Rights to Minerals 53 

IV. Licenses to Mine 07 

V. Oil and Gas Leases 74 

A Lease of Lands wUk the Privilege of digging and »rmg far OH or 

Gas 75 

B and C. Incorporeal Rights and Licenses relating to tk$ Extrac* 

tion of Oil and Gas 78 

VL BeservationA and Exceptions 83 


Mining Leases: Rights and Duties abising thereunder. 

I. Effect upon the Lease of the Non-ezistence, Ezhaiistion, or the 

Unmerchantftbility of Minerals 88 

n. Duties and Obligations of the Lessee lOO 

A. Lessee's Duty to mine 100 

B. Covenants to work Mines • 105 

(a.) Covenants sin^y to mine 106 

(b.) Covenants to mine a Certain Amount lOS 

(c.) Cotenanls to sink Wdls and conduct Oil Operations . . 110 
(d.) Covenants as to Manner o/working (he Mine and as to ike 

Condition of the Mine US 

C. Duty and Covenants topay Taxes 115 

D. Rent and Royaity 117 

IIL The Premises 12S 

A. Rights growing o^of (he Descriptum or Nature of these or indr 

detA^keref 123 

B. Fisaures and Appurtenances •••• 127 

lY. The Subjeoit o€ the Lease a&d the Bigfat of the Lessee to Ifinerals 

not eottmerated in his Lease .• 180 


Assignment and Termination of Lbaib» 

L Assignment of the Lease ••••• 186 

A. Mortgage qf Leasehold « • 141 

n. Teimination of the Lease 142 

A. By Expiration of Term 142 

B. By Exhaustion of the Minerals 145 

C. By Eviction • 146 

D. By Forfeiture • 147 

£• By Abandonment and Surrender •• •• 170 


Propertt of the Sovereign and its Grantees in Minerals. 

L In Mines of the Precious Metals 178 

II. In Minerals in the Beds of Navigable Streams 170 

HI. In Minerals under Public Highways 18S 

IV. In Minerals contained in Lands taken by Eminent Domain . • • 186 

A. Property in the Minerals upon or under the Lands appropriated . 186 

B. Mine-ownet's Rights, and Restrictions upon him by Reason of the 

Exercise of the Dominant Right, Damages for the taking . . 187 



Tbs GoYBBiiiaNT'fl Title and the Gramt tbbebov. 

• Paox 

L What Land is open to Location as Mineral Land • 196 

II. Who may locate a Mining Claim 902 

A. Citizenship of the United States the Essential Requisite ... 202 

B. (kher (hMlifieations of Locators 208 

C. Locaiion by Agent or Partner 208 



I. BiiooTery of Ore • . 214 

IL Length of Time allowed after Discovery to perform Acts of Loc^ 

tion 222 

IIL Location of Cbdms 227 

A. Marking the Location on the Ground • 227 

B. Notice of Location ; Pottifig of Notice 234 

C. Record of Location Certificate 239 

(a.) Its Nature and Necesdtg 239 

(b.) Contents of the Record 242 

(o.) VeriJSeation of the Certificate 250 

(jL) Amendment of the Record. Additional Certjfieates . • . 251 

(e.) Mistakes in the Record 253 

(f.) Requirements as to the Time and Place o/rtcording CertySr 

cole 264 


The Extent of the Claik. 

1 LodeClaima . • • 256 

n. Pkoer Claims • • . . 259 

HL Cases arising prior to the Act of 1872 2«1 

How MiNiNO Claims are helik — Assessment Woes • • • • 868 

Local Mining Rules and Regulations • • • S80 


How TiTLB TO Miking Claims mat be terminatbd. 


L By Abandonment •••• 295 

n. By Foil eituie 800 


Relocatiom 806 


The Possessort Title ob Title before Patent. 

L The Right of PossesfiioQ 317 

II. Action for the Possession of Mining Claims 331 

IIL Conveyance of Mining Claims before Patent. — Statute of Frauds 338 


The Patent. 

i. Obtaining the Patent 347 

A. Expenditure ••• 348 

B. Survey 853 

C. The Application Papen 357 

(a) The Application 3o8 

(b.) Proofs which must accompany the Application • • • . 361 

(c.) Posting and Pvblicatum • 363 

D. Entry 308 

E. Affidavits and Proofs 370 

F. Action by the Land Office and Issue oj Patent 871 

G. Hearings as to the Character of Land 376 

IT. Adverse Claim and Action thereon 382 

m. Effect of the Patent ... 415 

IV. Vacation of Patent 431 



Different Kinds of Claims, their Special Features ani> 


I. Lode Claims 437 

A. Dejinitionof Lode: Apex Rule . . • • • 437 

B. Cross and Unking Veins • 472 



II. Placer Claims 47(5 

in. Lodes in Plaoen ; . 482 

IV. Tunnel Claims '• 494 

Y. MiU Sites 503 

VI. Water Bight Claims 510 



I. Town Site Grants 511 

II. School Land Grants 525 

in. Land Grants to Baibroads 532 

IV. Homestead and Pre-emption Grants • • • • 540 

V. Indian Reservations 545 


Special Statutory Provisions for the Sale of Pdbuo Lands 

containing particular minerals. 

L Coal Lands 548 

II. Saline Lands 504 




Rights of Mine Owners. 

L Working and Surface Rights 576 

n. Rights of Way 584 

A Incident to the Grant or Reservation, or expressed therein . • . 584 

B. Given by Statute 591 

UL Timber Rights 598 

IV. Tailings and Refuse 607 

A. Property therein and their Deposit on the Land 607 

B. PoUution of Streams 613 

y. Drainage 630 



Water Rights. 

I. Water Bights on the Public Lands 337 

A. Appropriation ^gy 

B. Rights of Way for Ditches ! ! ! ! 659 

C. Injuries by Manner of constructing or operating Ditches ... 666 

D. Transfer of Title to Water Rights 067 

E. Abandonment of Water Rights [ qq() 

n. Subterranean Streams and Percolations ! ! 672 


Rights of Surface and Lateral Support. 

L Surface Support gij-^ 

II. Lateral Support •••• 68(5 

MnriNtt OH THE Land op otbebs. — Trespass 680 



Equttable Principles and Remedies in their Application to Mixes. 

^- Frawd 7U5 

II. Injunction p^^q 

III. Receivers . . . •. ' ^gj 

IV. Inspection [ '^ 73^ 

Joint Ownership of Mines. 

I. Rights and Relations of Joint Owners 744 

II. Partition of Mines 747 

in. Mining Partnerships 750 



I. Wages of Miners ••*. 766 

A. Manner of Payment • 766 

B. Lien and Preference 77I 

n. Health and Safe^ of Miners 780 

in. Health and Safety Statutes in their Relation to the Law of Negli* 

gence 735 



United States Statutes. 


Mioenil Lands and Mining Resources 795 

Coil Lands * 807 

Salioe Lands 800 

Timber Rights ' 810 

Protection of the Lives of Miners in the Territories 811 

Land Office Regulations. 

Mineral Lands open to Exploration, Occupation, and Purchase . . . 815 

Status of Lode CUdnui located prior to May 10, 1872 815 

Patents for Veins or Lodes heretofore issued 816 

Manner of locating Claims on Veins or Lodes after May 10, 1872 . • 817 

Tunnel Rights 819 

Manner of Proceeding to obtain Government Title to Vein or Lode Claims 821 

Placer Claims 825 

MiU Sites . : 828 

Possessory Right 829 

Proof of Citizenship of Mining Claimants 831 

Adverse Claims 831 

Appointment of Deputy Surveyors of Mining Claims. — Charges for Sur- 

veys and Publications. — Fees of Registers and Receivers, etc. . . . 833 
Proceedings before the Register and Receiver and Surveyors-General in 

Contests and Hearings to establish the Character of Lands .... 836 

Addenda 838 

Ixdex 839 



Abel r. LoTe 
Abercrombie, NidioUs 
Acheton f. SteyenBon 
Ackennan v. Hartley 
Ackert, Charies H. 



Adam v, Briggs Iron Co. 4, 21, 39, 749 
Adams v. Ore Knob Copper Co. 37, 160 

, Stnart V. 768 

Adams Lode 201 

Aderhold v. (Ml Well Supply Co. 140 
Ah Tong, Tibbitto v. 206 

Ah Yew p. Choate 629 

Ahem v, Dabnque Idnlng Co. 638 

Alabama, SUte of 681, 662, 667 

Alabama, Jnstice v. 663 

Alabama Quartz BGne 367 

Albion Con. M. Co., St. Lawrence M. 

Co. r. 366, 409 

Alden's Appeal 86 

Alder Golch Con. M. Co. r. Hayes 666 
Alexander, Gorman Mining Co. v. 207 

, Kings County v. 667 

, Moody p. 134 

Alford p. Bamum 686 

Alger Lode 402 

Algonquin Coal Co. p. Northern C. & 

I. Co. 66 

Alice Edith Lode 361 

Alice Placer Mine 409 

Allegheny Gas Co., Eaton p. 172 

Allegheny Oil Co. v. Bradford Oil 

Co. 162, 168. 781 

Allen p. DunUp 249, 731 

, Gerard B. 668 

— , Henderson p. 766 

, IloUinshead p. 8, 12, 17 

. Rader p. 572 

, Sheets p. 62 

Allen Gold M. Co., Southern Fac R. 

Co. p. 688 

Allentown Mining Co., Thomas Iron 

Co. p. 684, 700, 748 

Allison's Appeal 126, 788 

AUonez Mining Co., Edwards p. 628 

Alps a M. Co., McGowan p. 316 

Alta Mill Site 362, 866, 361, 606 

Alta Mining Co., Benson ICiiUng 

Co. p. 271, 426^ 093 

Alrord, Dbtis p. 776 

Amador Canal A M. Co., Ginocchio p. 348 
Amador Medean G. M. Co. p. South 

Spring HUl G. M. Co. 465^ 642 

Amador Queen M. Co. p. DeWitt 692 
Amador & Sacramento Canal Co., 
Anderson p. * 878 

, Hobbs p. 622 

American Co. p. Bradford 668 

American Flag, Colorado Central p. 278 
American ilag Lode 866, 409 

American Hill Quartz Mine 816, 430 

American Mining Co., OTerman S. 

M. Co. p. 268 

Ames p. Ames 21 

Amie Mining Co., Little PitUburgh 

Con. M. Co. p. 217, 296, 840 

Amy & Silversmith Mining Co., 

King p. 468, 460, 467, 468 

Anaconda C. M. Co., Butte & Boston 

M. Co. p. 746, 768 

Anderson p. Amador & Sacramento 








862, 471, 609 


Canal Co. 

p. Black 

, Hamilton p. 

^ Harvey's Heirs p. 

^— p. Simpson 
Andreas, Neumoyer p. 
Andrews, Cook p. 
Andromeda Lode 
Ankeny, McGoon p. 
Antediluvian Lode & Mill Site 222, 863, 

Antelope Lode 486 

Anthony p. Jillson 206, 231, 242, 894. 

Anthracite Mesa Coal Co. 560 

Antoine Co. v. Ridge Co. 3:)6 

Apple Blossom Placer p. Cora Lee 

Lode 861, 413. 403 

Arbuckle p. Biederman 710 

Argentine M. Co. p. Tenible M. Co. 455 

, Van Zandt p. 217, 321, 449 

Arizona Copper Co., Jantzen p. 206, 280, 

237, 241 
Arizona Gold M. Co., Carney p. 273 

Armstrong p. Caldwell 42, 672 

, Coppinger p. 118, 610 

, Findley p. 690 

, Higgins p. 761, 760 

p. Lake ChampUin Granite Co. 133 

p. Lower 199, 21^ 810^ 827, 464 





Armstrong, Munroe v. 
Arnold, Dotson v. 

^, Lyman v. 

1;. Richmond Iron Works 

V. Stevens 

, William A. 

Amott, Hall v. 

Arthur v. Earle 

Ashland Iron .Co., Green v. 

Ashman r. Wigton 

Askew, McDonald v. 

Aspen C. M. Co. 0. Williams 

Aspen M. & S. Co., Billings 1^. 

V. Hucker 

Wood V. 

Atchison v. Peterson 
Atherton, Baker v, 

V. Fowler 

Atkins V. Heitdree 

Atkinson, Ganter u, 

— ^, Gribben v. 

Atlantic Co. v, Marrland do. 

Atlantic & Pacific K. Co. 







199, 810 









615, 642, 721 


821, 423, 534 






Attwood V. Fricot 288, 822, 825, 841 

Audenried v. Woodward 129 

Aurora kill Con. M. Co. v. 85 Mining 

Co. 271, 383, 424 

Aurora Hill M. Co.. Tanj^erman v. 370 
Aurora Lode v. Bulger Hill ft N. G. 

Placer 494 

Austin V, Huntsville Coal & M. Co. 40, 

120, 698 
Avery, Pratt v, 366 

V. Smith 563 

Ax ley, Patton v, 52 

Babcock, Clark v. 98, 114 

V. Stewart 704 

Baca Float 547 

Bacigalupi, Carter v. 288, 242, 244, 245, 

Back V. Sierra Nevada Con. M. Co. 

397, 499, 501 
Bacon, Hardenbergh v. 343 

Baden Gas Co., Cleminger v. 166 

Bailey, McGowen v. 685, 744 

Bailey & Grand View M. & S. Co. 366, 

Baker v. Atherton 

, Gruber v, 

V. Hart 

V. Jamison 

V. McDowell 

52, 61, 700 

Baldwin, McCormick v. 

Balfour v. Russell 

Ballou, Strettell v. 

Balthaser, Reading & Fottsville R. 

Co. V. 191 

Bamford v. Lehigh Zinc & Iron Co. 90 

, Lehigh Zinc & Iron Co. v, 90, 119. 

Bank V. Tion 41, 74 

Bankhead v. Brown 593 

Banks, Nathaniel 562 

Baniion c. Mitchell 633 

Barber Asphalt Paving Co., Nega t;. 71 
Barden t;. Northern Piuuflc R. Co. 533, 

Barker, Weese v. 
Barkley h. Tielk^ 
Barksdale v. Hairston 

V. Parker's Adm'rs 

Barlow, White v. 






197, *J44, 254, 320 




^27, 574 



Barnard, Faxon v. 

V. McKenzie 

Barnes, Berwind v, 

, Cluu*le8 A. 

, Lulay V. 

, Newman ». 

Bamhart v. Lockwood 
Barnum, Alford v, 

V. Landon 

Barrett, Stoakes v. 

Barrv v. Worcester 

Bartfett, Keen v. 

Bartlett C. & I. Co. v. Roach 

Bartley v. Phillips 

Barton Coal to. v. Cox 

Basey v. Gallagher 

Bash ford, Eaman v, 

Bass, Hoch v. 

Bassick, McGrath 0. 

Bates, Bowman r. 

Batten, Walton v. 

Baudit, Remington v, 

Baugh, Wheatley v. 

Bay State O. M. Co. v. Trevilllon 


166, 176 
168, 161, 734 

710, 714 

55, 59, 61, 67 




Bay State S. M. Co. v. Brown 
Bayard, Grubb r. 
Bayaud, Gaboon v. 
Bayliss, Dillon v. 
Beale, Jennings v. 
Bean, James 

V. Valle 

Bear Creek G. M. Co., Cronin v. 
Bear River & Auburn W. & M. Co.». 


, Campbell r. 

, McDonald v. 

V. New York M. Co. 620, 646 

, Wixon t'. 620, 650 

Beard v. Federy 419 

V. Skeldon 787 

Beatie v. Rocky Branch C. Co. 94 

Beatty's Appeal 778 

Beatty v. Gregory 68, 69, 172 

Beaucoup Co. v. Cooper 781 

Bechtel C. M. Co., Bodie t. & M. 

Co. V, 406, 508 

Beck, Reed v. 107, 120 

Becker, Nichols v. 279, 411 

V. Pngh 232, 268, 290, 394 

r. Sears 406, 492 

Bed Rock T. & M. Co., Bell v. 297, 808 
Bedford's Appeal 14 

Beech Creek Coal Co., Wilson v. 99 



Beecber, Brown v, 68, 77 

— 9. Dacejr 768 

, Hoffman u. 899 

Belcher Coo. 6. M. Co. v. Deferrari 272, 

Belk 9. Meagher 197, 268, 276, 804, 808, 

314, 821, 829 
fieU9. Bed Bock T. & JUL. Co. 297, 808 

, Blueetone Coal Co. v. 177 

— ^Hiekev. 178,196 

— , MeDaaiel r. 568 

a. SkiincoA 468 

Bellwether Lode 864, 403 

Bebhtw, San Felipe If. Co. 9. 348 

Belroir M. & M. Co., Fergueeii «. 279, 816 
Benjamiii, United Sutee v. 6Q3» 606 

BensoD Mining Co. v. Alta Mining 

Co. 271, 426, 698 

Berg 9. KoMel 261 

Bergin, Jankane v. 664 

Berringer f. Cobb _^ 768 

Bert7 v. Central Pacific R. C6. 639 

1 McBnmej r. 260 

p. Woodbnm 769 

Berwind v. Bamee 682 

Berwind-White C. M. Co., Salljr v. 770 
Beit, Gale v. 686 

Beitwiek v. Ormsby Coal Co. 178, 686. 

Bewick v. Fletcher 128 

V. Muir 772 

Bieknell, Maeria v. 646 

^— , Marius v. 646 

Biederman, Arbackle v, 710 

Bier, Brownfleld v. 492 

Big Flat GraTel M. Co. v. Big Fiat 

Gold M. Co. 860 

, Malone v. 772 

Big Pitteburg Con. S. M. Co., Tabor v. 698 
Bigelow, Neeeler v. 670 

Billings 9. Aapen M. & S. Co. 206, 271 

V. Taylor 9 

Bi-metallic Mining Co. 867, 472 

Bird, Donty r. 686 

, Shepherd v. 201 

Biabee, McKeon v. 324 

Biisell, First Nat. Bank v. 764 

» Foea 764 

Black, Anderson v. 231 

u. Eikhom Mining Co. 9, 296, 296, 

828, 426 

, Largey o. 498 

, Noyes v. 329 

Black Diamond Lode 867 

Black Hawk Townsite, Pederson 

Lode 0. 876, 626 

Black Queen v. Excelsior No. 1 414 

Black River Phosphate Co., State v. 181 
Blaen Co*l Co. v. McCnlloh 697 

BiaiB, Wills V. 814, 338 

Blair, Bradford Oil Co. v. llO, 188, 139 
Bfalf Iron Co. v. Lloyd 701 

Blake v. Batte S. M. Cd. 8tt), 401, 429, 


BlUke, Columbian Oil Co. v, 81 

V, Thome 886 

Blakley v. MarshaU 14 

Blasdei, PhiUootts v. 238, 846 

Blewett V, Coleman 24 

— , Coleman v. 26 

Blindert o. Kreiaer 74 

Bli6s V, Kingdom 663 

, Winter V. 879, 645 

Bliven Petrolenm Co., Union Petro- 
leum Co. V. 81, 82 
Block v. Murray 776 
Blodgett V, Potosi Co. 84;) 
Blue Bird M. Co. v, Largey 466 

V. Murray 466, 699, 742 

Blue Point Placer, Nevada Reservoir 

Ditch t. 405 

Bltestone Coal Co. v. Bell 177 

Bonro. Erhardt t;. 216,228,286,286^809, 

Boatman, BUers v. 199, 283, 880, 40l 

Bodie Con. M. Co., Jupite^ M. Co. v. 217, 
229, 240, 244» 267, 269, 286, 302, 460 
Bodie T. & M. Co. v. Bechtel 406, 603 
Bogart V. Daniels 206 

Hoggs V. Merced Muiing Co. 196, 198, 421 
Bohanon v. Howe 206 

Bolen, Snoddy v. 84, 186 

Boles, Bear River & Auburn W. 6 

M. Co. V. 600 

Bonanza, Iowa v. 405 

Bonanza G. M. Co., Empire G. M. 

Co. V. 694 

Bond, Brown v. 411 

Bonesell v. McNider 412 

Bonnell, Commonwealth v. 782 

Bonner, John R. L. 664 

Booher v. Browning 735 

Book V. Justice Minmg Co. 210, 218, 229, 

Boone v. Stoyer 58 

Bordeaux, Davidson u. 220, 278 

Borrouglia, Powell v. 109 

Boston Frankiinlte Co. v. Condit 21, 749 
Boucher, Duryea v. 245 

V. Mulverhill 292. 763 

Boulder & Buffalo M. Co. 6.S1 

Bouscher, Rara Avis G. & 3. M. Co. r. 773 

Bower, Schultz r. 
Bowman v. Bates 

V. Irons 

V. Patrick 

, Patrick V. 

Bowyer v. Seymour 
Boyd V. Negley 

, Quimby v. 

Boyaston v. Meachetn 
Boyer, Dickenson o. 

V. Fulroer 

Boyle, Dickinson i?. 
Boynton, Savage v. 
B^aceville Coal Co. v. PMiple 
Bracken v. Preston 
Bradford, American Co. v. 

710, 714 


Bradford, Marqnart o. 

Bradford OU Co., Allegheny Oil 


Co. v. 
^^ V. Blair 
Bradley v. Harkness 
— ©. Lee 
Bradttreet v, Rehm 
Brady v. Uusby 
Branagan v. Dalaney 
Brandow v. PocotiUo S. M. Co. 
Brandt v. McKeeTer 
Braswell, Judge v. 
Brazier, Upton v. 
Breece Mining Co. 
Brehen, O'Donnell v, 
Brennan i;. Hume 
Bretell v. Swift 
Brewer v. French 
Brewnter Iron M. Co., MarTin o. 41, 86, 

672, 681, 079 
Bridge Co., Stokely v. 
Briggs V. Davis 
— , Hays V. 
Briggs Iron Co., Adam v. 
Bright, Carey v. 

162, 168, 731 

110, 138, 130 


272, 826 



221, 408, 476 













4, 21, 89, 740 


i;. Elkhom Mining Co. 870, 376, 410 

Broad v. Ray 

Broad Axe Lode 

Broder v, Natonia Water Co. 

Broman v. Young 

Bronson v. Lane 

Brooks, McKee o. 

Brown, Bankhead v. 

, Bay State S. M. Ca o. 

V. Beecher 

r. Bond 

, Camahan v, 

— V. Corey 
Daniel v. 












46, 190, 607 


V. 40 & 66 Quartz M. Ca 462 

. Hope Mining Co. v. 397, 408, 499, 


, Mitchell V, 

— , Moore v. 
— ^ r. Morris 

r. Peterson 

, Pfeififer v. 

— — , Salt Co. V. 
— I'. Solary 

r. Spilman 

, Timlin v. 

V. Torrence 

r. Vandergrift 

, Whitaker v. 

Brownfield v. Bier 
Browning, Booher v. 









80, 00, 08, 00, 114 

677, 688, 626. 681 

88, 103, 167 




Bruckhart, Haldeman v. 678 
Brundy v. Mayfield 277, 304, 400, 409, 746 

Bryan v. McCaig 274, 396 

Bryden, McClintock v. 196 

Babb, ColUns v. 646 

Buchanan v. Cole 776 

Buckley, Smith v. 669 

Bttell, Johnion v. 464 

Buena Vista Lode 866 

Buena Vista Petroleum Co. v, Tnlare 

O. & M. Co. 628 

Buffalo Co., Petit v. 410 

Bugbey, Water & Mining Co. v. 627 

Buhl V. Thompson 173 

Buiey, Montana v. 631 

Bulger UUl & N. G. Placer, Aurora 

Lode V. 404 

Bullard v. Flanagan • 660 

Bullion, Beck, & Champion M. Co. v. 

Eureka HiU M. Co. 470 

Bullion Mining Co., Courchaine v. 623 

, 420 Mining Co. v. 888, 400. 672 

Bullock V, Central Pacific B. Co. 436, 689 
Bui winkle, Napier v, 677 

Bumgardner, Lee r. 60, 66 

Bumpus, Stone p. 662 

Bundy v. Catto 184 

Bunker Hill & S. M. & C. Co., Bnrke v. 392 
Burbank, Rivers v. 666 

Burdge v. Smith 629 

V. Underwood 196, 662, 663 

Burgan v. Lyell 762 

Burgner v. Humphrey 120, 680 

Burgwin, Hepublic Iron Works v, 687 
Burke v. Bunker Hill & S. M. & C. 

Co. 892 

w. McDonald 219, 226, 397, 466 

Burleson, Fernandez v. 773 

Burnham, Snyder v. 762 

Burnum, James W. 668 

Burt, Duryea v. 766 

, State V. 6 

Burton, Harkness v, 16, 70 

Bush, F. L. 361 

V. Sullivan 69 

Bushnell v. Crooke M. & S. Co. 896 

V. Proprietors of Ore Bed 622 

Butcher, Hauswirth v, 268 

Butler, Davis v. 296 

, State National Bank v. 761 

, Suffern v. 40 

Butler Savings Bank, Osborne v, 766 
Butte, Murray v. 300, 622 

Butte, Anaconda & Pac. Ry. Co. o. 

Montana Union Hy. Co. 602 

Butte & Boston Mining Co. 486, 494 

, Anaconda C. M. Co. v 746, 763 

Butte C. & D. Co. V. Vaughn 647, 670 
Butte City Smoke House Ix)de Cases 622, 

Butte Hardware Co. v. Cobban 300 

Butte & Montana Com. Co., Heaney v. 604, 

Butte Silver M. Co., Blake v. 380, 401, 

420, 469 
Butte T. M. Co. v. Morgan 649 

Butterfleld, Miller v. 768 

Bybee v. Oregon & California R. Co. 662 
Byington,McGarrityt;. 272,287,297,802 
Byrne v. Slauson 234, 368, 414 

Byrnes, Douglass v. 694 

^— f McLamn v. 774 



Cabli Cob. G. ft S. M. Co., Golden 
Fleece 0. & & M. Co. v. 199, 207, 293, 

Caifle, Coraelias, Jr. 682 

Ckboon p. Bayaud 72 

Ctin, Coryell v. 885 

Caldirell, Armetrong v. 42, 672 

p. CopeUnd 42, 46. 672, 673 

v.Fulton 42,44,66,03,66,78, 

Caledonia G. M. Co. v, Noonan 646 

, Noonao v. 646, 646 

Caledonia Mining Co. v. Bowen 877 

California v, DaraaneUes 403 

, Keystone Con. 11. Co. v. 681 

Callfornit OU Co., Gird v. 198,230,236, 

246^ 260, 266, 272 
California, State of 629, 632 

Callihan v, Mnrtland 747 

CalliaoD, Mount Diablo M.&M.Ca 9. 280, 

267, 284, 801, 448 
Cambria Iron Co., Johnstown Iron 

Co. 0. 66, 62, 04, 60, 73 

Cambria M. Co., Hartford I. M. Co. v. 39, 

Cameron, Daniel 362 

Cameroo Lode 625 

, Erie Lode r. 867 

Camman, Hartweli v. 40 

Campbell v. Bear RiTer ft Aabnm 
W. ft M. Co. 667 

, EUet V. 496, 600 

— , Galloway r. 738 

— , Iron Silver Mining Co. v. 392, 464, 

— , John 647, 657 
— , O'Reilly v. 204, 206 
V. Rankin 240, 284, 320, 321 

— V. Weat 668 
Caofleld v. Ford 41, 760 
Caonon, Northern Pacific R. Co. v. 347, 

Capeo, Dickinson v. 880, 644 

Caples 9. Steel 714 

Capoer v. Mining Co. 18 

Capricorn PUcer 206, 868, 376 

Capnm v. Strout 778 

Carbon Iron Mfg. Co.. Lord v. 634, 729, 

Carey v. Bright 129 

Carl, Granger Coal Co. v. 92 

CarUn v. Chappel 682 

Camaban v. Brown 63 

Carnegie, Lents v. 628 

Caney p. Arizona Gold M. Co. 273 

Carothers, Mayer v. 671 

Carp River Iron Co., Ward v. 17, 18 

Carpenter, Ophir S. M. Co. v. 666, 667 
— , United States v. 646 

Cinr, In re 741 

— p. Whitebreast Fuel Co. 93, 120 
Carrfaart v. Montana Mineral L. ft M. 328 
CnroH, Delaware ft Hudson Canal 

Ooi*. 791 

Carson, Girard v. 428 

, Steves V. 392 

Carson City G. ft S. If. Co. v. North 

Star M. Co. 369, 462 

Carter v. Bacigalapi 288» 24% 246, 248, 


V. Hoke 738 

, McShane v. 344 

p. Thompson 619 

Camthers p. remberton 665 

Cascade Lode 864, 403 

Casey v. Northern Pacific R. Co. 539 
Cash G. ft S. M. Ca, Cullacott p. 427 
Caste, Nancy Ann 662 

Castle, Taylor p. 767 

0. Womble 222, 881 

Castleberry p. State 660 

Castner, John K. 857 

Castor p. McShaffeiy 778 

Catlett p. Young 789 

Catron p. Lewishon 414, 788 

Catto, Bandy p. 184 

Cayuga Lode 868 

Central Pacific R. Co. 637, 538 

, Berry p. 589 

, Bullock p. 486, 538 

, Consolidated Channel Co. p. 610 

, Doran p. 535 

p. Mammoth Blue Gravel Co. 587 

, North SUr M. Co. p. 588 

p. Valentine 588 

, Zadig p. 881 

Central Smelting Co., Kahn p. 754 

, Old Telegraph M. Co. p. 736 

Central Trust Co. p. ShefSeld ft B. C. 

I. ft R. Co. 
Chad wick, Coleman p. 
Chalfant p. Williams 
Chamberlain p. Dow 

p. Parker 

Chambers p. Harrington 




/ 77 


268, 209, 389, 

221, 889, 401 

, Harrington p. 

p. Jones 

Champion Con. M. Co., Northern Pac. 

R. Co. V. 589 
Champion Mining Co. 259, 360 
r. Consolidated Wyoming G. M. 

Co. 827, 394, 474, 726 
, Consolidated Wyoming G. M. 

Co p. 426,459 

, Walrath p. 461 

Chandler, Ramsey v, 643 

Chapman, Helm v. 772 

p. Toy Long 820, 721 

Chappel, Carlin p. 682 
Charles p. Eshleman 769, 760 
Chartiers Oil Co., Glasgow p. 165 
Chartiers Valley Gas Co., Collins p. 678 
Chase r. Savage S. M. Co. 212 
Chavanne Quartz Mine 294, 378 
Cheeney v. Nebraska ft C. Stone Co. 693 
Clieeaman v. Hart 241, 455 
, Iron Silver M. Co. p. 450 



Cheesman t*. Shreeve 217, 809 

i;. Shreve . 465, ti93 

Cheever, Goatea v. 11 

CheMiuan, William A. 360, 481 

ChewoD, Phelps v. IdO 

Ciiester Co. v. Lucas 89, 126 

Chester Slate Co., Miller v. 107 

Chestnut, Dougherty v. 704 

Chevington & Bunn Co. v. Lewis 115 
Chew, Esmond v. 609, 648 

Chicago & Allegheny O. & M. Co. i;. 

United Statas Petroleum Co. 75, 76, 

Chicago Quartz M. Co. v. Oliyer 686 

Chicago, Santa Fe & Cal. B. Co. v. 

McQrew 180 

Chicago & Van Meter 0. M. Co., Van 

Meter v. 172 

Chicago, Wilmington, ft V. C. Co. t;. 

Peterson 788 

Chicago Zinc Co., Wickersham v. 148, 

Childs V, Hurd 132, 142 

o. K. C, St J. k C. B. B. Co. 21 

, Walter C. 366 

Chilton, Harvey v. 647 

Chisholm, Thomas v. 208, 206, 806 

Choate, Ah Tew v, 529 

Christian, Tnnstall v. 677 

Christie, Thompson v. 161 

Christner v, Cumberland k Elk L. C. 

Christy's Appeal 
Chumasero, Kussell v. 
Chung Kee v, Davidson 
Church Placer, War Dance v. 
Chynovitch he. Granby M. & 8. Co. 
Citizens' N. O. Co. v, Shenango N. 6. 


, Springer v. 

City Bock v. King^f tha West 
Clark V, Babcock 

Davis ». 

p. Duval 

— V. Ervin 
f Fitzgerald v. 








201, 482, 546 


. Henshaw v. 196, 198, 725 

V. Jones 160 

, Jones V. 767 

, McKinttry v, 818, 328 

V. Midland Blast Furnace Co. 94 

, Montana Co. v. 441, 448, 456, 693. 


V, Bitter 

». Taylor 

i;. WiUett 

Clary v. Hazlett 

Clay, Coal & Mining Co. v. 

Kansas City M. & M. Co. v. 

Cleary, Ijeavers v. 
Clegg 17. Jones 
Clement u. Toungman 
Clements, Colroan v. 
Cleminger v. Baden Gat Co. 

62. 66, 73 



211, 260, 426 










Clever, Guffey u. 
Clift V. Clitt 
Clifton V. Montague 
Cline, Mitchell v. 
Clipper Mining Co. 
Cloke, County of Yuba v. 
Clowser v, Joplin Miqing Co. 
Clyde Coal Co., Jenkins p. 
Coal Co. V. Estievenard 
— , Flynn v. 

, Franklin Co. o. 

— : — , Knight v. 

, Bobinson ». 

V, Yung 

Coal, Coke & Mfg. Co., Petrvtleum 

Co. V, 108, 148, 167 

Coal & Mining Co. v. Clay 7(K> 

Coal Creek M. Co. v. Davis 786 

Coal Creek M. & M. Co. v. Mqses 70^ 

, Pearne p. 106, 68Q 

Coal Bun Coal Co. v. Jones 782 

Coast, Phillips v. 7(^ 

(■oates V, Cheever 11 

Cobb, Berringer v. 768 

, Murphy ». 810, 837 

Cobban, Butte Hardware Oa. v. 899 

Cochran v. Pew 98, 166 

Coe Quartz M. Co., Silvester V' 773 

Coker v. Simpson 645, 726 

Cole, Buchanan o. 77Q 

, SprinRfleld F. k M. Co. v, 72, 775 

Cole S. M. Co. p. Virginia k Gold Hill 

W. Co. 
Coleman's Appeal 
Coleman r. Biewett 
— , Biewett V, 
-^— p. Chadwick 
— V, Coleman 

V. Curtis 

V. Grubb 

Collins V. Bubb 

641, 719. 720 

20, 26, 29, 64 



678, 681 





V. Cliartiers Valley Gas Co. 673 

— r—, Fabian v. 656, 669 

V. Mechling " 122 

, Northern Pacific B. Co. v, 689, 5f)9 

Col man v. Clements 188, 30:^ 

Colorado, Freese v. 532 

, Silver Cliff i;. 531 

, State of 681, 682, 666 

Colorado Central r. American Flag 2TS 
Colorado Central Con. M. Co. r. Turck 

Colorado C. & I. Co. v, Ijamb 786 

V. United States 542, 564 

Colorado L. & M. Co., Croesus M. 

Co. r. 204, 229 

Colorado Midland R. Co. v. Croman 464 

, Twin Ukes H. G. M. S- »• 189 

Col ton, Joseph L. 566 

Colanibia Mining Co. v. Bolter 665 

Columbian Oil Co. v. Blake 31 

C(»lumbuB k Hocking C. k I. Co. i^. 

Tucker 624 

Colvin V. McCune 571 



Comegji V. RusmII 


Commonwealth r. Bonii^U 


— V. Connell 


r. Coonrad 



9. Hartzell 


r. Hatchisoa 


^— p. Isenberg 


p. Jones 


r. Reynolds 



p. RuMell 

618, 629 

r. Steimling 

7, 612, 702 

— p. Tompkins 


p. Wiji^ton 


: — c. Wilkesbmm Coal Co. 


— «. Vipood 


Gonant p. Smitb 





102. 163, 164 

CoDdit. Boston Frankltnite Ca. V. 21,749 
CoodoD p. Mammoth MiaiDg Co. 864, 867 
Cone Iron Works, Stockbmge Iron 

Co. p. 696, 741 

Cooewago Iron Co., Ridgaly o. 80, 91 
Conej p. Biammoth 406 

Ceager p. Wearer 196^ 047, 662 

Conlin p. Kellj 901, 480, 482 

Conoell, Commonwealth v. 782 

Coooell Lode 
Conoerp. McPbee 

p. Terry 

Coorad r. Morehead 

Consolidated Channel Co. v. Central 

Pacific R. Co. 610 

Consolidated Coal Co. «. Bohaefer 113, 

Consolidated Coal Co. of St Ii>ais v. 
Peers 88, 119, 187 

, Peers ». 187 

p. ScheUer 788 

p. Sahmissaor 680 

Consolidated BCining Co. 867, 471 

Consolidated Repablican M. Co., Leba- 
non M. Co. of N. Y. 9. 310, 887, 844. 

Consolidated Republican Mountain 

M. Co. p. Lebanon M. Co. 212, 274 
Consolidated Wyoming 0. M. Co. i*. 
Champion M. Co. 426, 469 

^.Champion M. Co. p. 827, 894, 474, 

Consolidation Coal Co., Hicks v. 
Constans, Shafer v. 
Continental Co. v. Gage 
Cook p. Andrews 

, Reynolds p. 

Coolce Townsite. Esler v. 

Cooley, Smith v. 

Cooney, Rogers p. 288, 821, 880, 611 

Coonrad, Commonwealth v. 783 

Cooper, Beaucoup Co. v. 781 

p. LoToring 711 

p. Roberts 627 

Csosaw BIming Co. v. South Oarolma 


607, 624 
66. 740, 768 

Copeland, Caldwell v. 42, 46, 672, 673 
Copper Bell M. Co., Shreve r. 220, 282, 

Copper Hill Co. r. Spencer 842 

Copper Prince, Wi^rren Mill Site p. 406, 

Coppinger p. Armstrong 118, 610 

Cora Lee Lode, Apple Blossom 

Placer p. 861, 413. 493 

Corcoran. Oyerman S. M. Co. v, 221, 61i4 
Cordell Placer Mine . 662 

Corey, Brown u, 46, 190. 507 

Cormack, Gourdier p. 687 

Corning Tunnel p. Slide Lode 370 

Coming Tunnel Co. v. Pell 498, 600, 601, 

Correa p. FMatas 068 

Correction Lode 857 

Coryell v, Cain 836 

Courchaine v. Bullion M* Co. ^28 

Courtright r. Wisconsin CentilU M. 

Co. 639 

Oqvode, Irwin v, 12 

Coyran v, Hardeman 688 

^ Johnston p. 63 

p. Radford Iron Co. M, 17^ 

Coward, Felger p. !348 

Cowell V. Lammers 422, 584 

Cox, Barton Coal Co. p. 606 

Crabell v. Wapello Cofll Co. 789 

Craig p. Thompson %\^, 240, ^, 811 
— r-, Wedekind p. 620 

Crandall v. Woods 645 

Cr^ry, Union Water Co. 9. 650, 668 

Craven, Swaim p. 41 ^ 

Craw p. Wilson 764 

Crawford, Kennedy p. 162 

, Sierra Gn^nde M. Co. p. 608 

Creary, Dougherty 9. 609, 670, 766 

Creighton, I^dley i*. 141 

Creswell M. Co. p. Johnson 378 

Crismon, Union Pacific R. Co. p. 537 

Croesus M. Co. v, Colorado L. ft M. 

Co. 204, 229 

Croman. Colorado Midland R. Co. p. 464 
Cronin p. Bear Creek G. M. Co. 397 

Crooke M. & S. Co., Bu«linell t. 396 

Cross V. Tome 120 

Crossnmn 7^ Pendery 217. 321 

Crouch, H. W. R. 543 

p. Piiryear 1 5 

Crow, Wating v. 287, 206, 336^ 746 

Cryan v. Ridelsperger 158 

Crystal River M. Co., Oscamp p. 271, 302 
Cullacott I'. Cash G. & 8. M. Co. 427 

CuIliMfi V. Flaarstaff S. M. Co. 779 

— , FlawtafE S. M. Co. ». 779 

Culver, United States p. 542 

Cumberland Cotton Factory, Miller?'. 774 
Cumberland & Elk L. C. Co., Christ- 

ner p. 792 

Cummings, Park Co. v. 146, 586 

V. Peters 668 

Cummins, Watts p. 716 



Cuoningliam, O'Keiffe ir. 
— , Weakland v. 
Curtis, Cfileman r. 
Cusick, Lei t ham r. 
Cutting V, Uelninghaus 
Cyprus Mill Site 

718, 736 

Delaware, Lackawanna & Western 
R. Co. f. Sanderson 46^ 116 

, Woodward v. 116 

Del Monte M. & M. Co. r. New York 

Dacet 17. Beecher 768 
Dahl V. Montana Copper Co. 489, 491 
, Montana Copper Co. v. 489, 491 

V. Rauuheim 

, Rannheim v. 

Dale V, Roosevelt 

, Roosevelt o. 

Dana, McClintock v, 
Daney Gold M. Co., Heydenfeldt v, 418, 

627, 6.W 
Daniel v. Brown 

898, 424, 488, 491 

898, 488, 491 




Daniels, Bogart v, 

V. Hilgard 

Dardanelles, California v. 

, Overman v. 

Darger r. Le Sieor 
Dargin v. Koch 
Dark v. Johnston 
Darragh v. Holdnuui 
Davey, Duggan o. 

, Sheldon v, 

Davidson v. Bordeaux 

, Chung Kee v, 

, Irwin V, 

— ^ V, Jordan 
Davis r. Alvord 

, Briggs V* 

V. Butler 

V. Clark 

— , Coal Creek M. Co. r. 
V. Gale 



661, 668, 670 

278, 401, 428 






826, 749 

V. Henry 716 

V. Jefferson Gas Co. 192, 686 

V. Moss 107, 129, 166, 160, 688 

, Seaton Mining Co. v. 369 

V. Weibbold 198, 617, 620 

Davitte, Georgia Slate Co. v, 727 

Dayton G. & S. M. Co. u. Seawell 698, 6^4 
Deadwood. Townsite of 200 

Dearden, Walter 668 

De Anlo, Morse v. 773 

])e Hour, Mont Blanc Con. Gravel M. 

Co. V. 893 

Decker v. Howell 757 

Deep River G. M. Co. v. Fox 731 

Deer Ijake Co. r. Michigan L. & I. Co. 181 
Deferrari, Belcher Con. G. M. Co. v, 272, 

Deffeback v. Hawke 197, .372, 42.S, 614, 

616, 617, 618, 624, 641 
De Garcia t^. Eaton 414 

Delaney, Florence D. 202, 482 

Delaware & Hudson Canal Co. r. Car- 
roll 791 

, Genet r. 42, 101, 678, 682, 611, 635 

— — , Miles V, 117 

& Last Chance M. Co. 
Del Re, McLaughlin v, 
Deno v. Griffin 
De Noon v, Morrison 
Denver, McConnell v. 
l>epbanger, Philip 
Depuy V, Williams 
Derry v. Ross 
Desloges v. Pearoe 
Des Moines v. Hall 
Devereux i;. Hunter 
Devine, Kane v. 
Devlin, Hughes v. 
De Witt, Amador Queen M. Co. r. 692 

, Wamock p. 284, 316 

, Westmoreland Nat. Gas Co. v, 30, 

81, 82, 79, 82, 110, 783 
Dexter, Tabor p. 446 

Dickenson v. Boyer 772 

Dickert & Myers Snlpbnr Co., Utah 

M. & M. Co. V. 278, 800 

Dickinson v, Boyle 698 

V. Capen 880, 644 

Dietz V. Mission Transfer Co. 124, 128, 

Dillon V. Bayliss 248 

Dines, Jackson v. 
Dininny, Watt v. 
District Court, People v, 

, People ex reL Aspen Co. v, 

Dixon, Merrill u. 

, Ortman v. 

Dobbs Placer Mine 

Dobler v. Northern Pacific R. Co. 

Dobschuetz v. Holliday 


Dock, Lykens Valley Coal Co. v. 7, 188 
Dodge V. Marden 666, 671 

, Perego v. 886, 393 

Doe {'. Sanger 463 

, Smiths. 196,198,836 

I'. Tyler 231, 268 

p. Waterloo Mining Co. 224, 287, 

2<.)6. 362, 386, »1)8. 426, 467, 603 

, Waterloo Mining Co. r. 218. 222 

Doherty u. Morris 276, 312, .^6 

Dolles V. Hflmberg C. M. Co. 
Dolly V. Lakin 
Donahoe, Kelly v. 
Donah ae r. Johnson 
?'. Meister 

Donnel v. Hnniphreys 

Donnellan, Gwillim ?*. 

Doran p. Central Pacific R. Ca 

Doster v. Friedensville Zinc Co. 

Dotson p. Arnold 

Double V. Union U. & L. Co. 

Dougherty r. Chestnut 

p. Creary 

p. Haggm 

Douglas, Mickle v. 


267, 869 


609, 670, 756 

151, 679 




298, 619, 620, 


DoagUai 9, Bjniet 

, Draper p. 

DoQtjr V. Bird 
Dow, Bank v. 
— , Chtmberlain 9. 
Dower v. Richards 
— — , Richards p. 
Downejr v. Bogers 
Downing, Tuck o. 
Downs, Jobn 
Draice, Gilpin Co. v, 

r. Lacoe 

Draper o. Douglass 
Driflooli V. Dttnwoodj 

f Gilmore ». 

— , Logan p. 
Drirer, ifones v. 
Drammood v. Long 
Dabaqoe M. Co., Ahem v. 
Dncie p. Ford 
Duff's Appeal 
DuiBeld r. Hae 
— p. Rosenzweig 
Dufl^ V. Mix 
Duffy Quartz Mine 
Doggan V. Darej 
Doghi 9. Harkins 
Doke 0. Hagae 
Doianey, Branagan v. 
Duncan, Ellis v. 

V. HoUidaysbarg & Chip Iron 

Dandas v. Muhlenberg 
Dunham v. LoTerock 
Danker, Lezart o. 
Dunbip, AUen o. 
Dunluce Placer Mine 
Dunphj, Elijah M. 
Dunwoodj, DrisooU p. 
Da Prat ir. James 
Dnrango L. & C. Co. 
Dnrant p. Lexington Coal M. Co. 
Durkin p. Kingston Coal Co. 786, 
Duryea p. Boucher 

p. Burt 

DuTsl, Clark p. 
Dwight, Bfays p. 



82, 126, 160, 169, 


818, 881, 


221, 408, 


190, 281, 273, 





Edwards p. McClurg 44 

, Spratt p. 644 

Eells, Pendill p. 146 

Egbert, Jamestown & Franklin R. 
Co. p. 106 

, McGinnis p. 238, 274, 811, 394 

Ege V. Kille 701 

86 Mining Co., Aurora Hill Con. M. 

Co. p. 271. 8H3, 424 

Eilers p. Boatman 199, 233, 330, 401 

Eisemann, Albert 558 

Eider p. Lykens Valley Coal Co. 028, 629 
El Dorado W. & D. G. M. Co., Os- 
good p. 658, 671 
Eldredge, People p. 190 
Electro Magnetic M. & D. Co. p. Van 

Auken 218 

Eley's Appeal 12. 14 

Elgin Mming Co., Iron Silver M. 

Co. p. 45:5, 450, 459 

Elkhom Mining Co., Black p. 9, 295, 2i)6, 

323, 426 

870, 375, 410 









Eaglb Salt Works 637. 666 

Raman p. Bashfbrd 771 

Earle, Arthur p. 644 

Early. Grad/ p. 336 

East Jersey Co. p. Wright 41, 66, 69. 1 72 
Eaton p. Allegheny Gas Co. 172 

1 De Garcia p. 414 

1 United States p. 600 

p. Wilcox 143. 153 

Eclipse G. & S. M. Co. p. Spring 393, 463 
Eclipse Mill Site 510 

YMj p. Simpson 644, 670 

Edwards p. AUouez Mining Co. 623 

, King p. 101, 148, 150, 199, 291. 304. 


, Bright p. 

Ellet V, Campbell 
Ellis p. Duncan 
— , Parsons p. 

, Young p. 

Emerson's Appeal 

Emery, Owings p. 

Emily Lode 

Emma Lode 

Emperor Wilhelm Lode 

Empire G. M. Co. p. Bonanza G. M. 

Co. 694 

English p. Johnson 230, 241. 201. 288. 

Ennis. Murley p. 295, 298, 844 

Ensiminger v. Mclntire ^ 196 

Enterprise Co.'s Appeal 739 

Enterprise M. Co. p. Rico- Aspen M. 

Co. .397, 495» 497 

Enterprise O. & G. Co. p. National 

Transit Co. 29 

Equator Lode 865, 378, 404 

Equator M. & S. Co.. Harris p. 822 

Equitable Gas Ca. McGregor p. 192,685 
Erhardt p. Boaro 215. 223, 236, 286, 309. 

Erickson p. Michigan L. & L Co. 580. 671? 
Erie Lode r. Cameron Lode 867 

Ervin, Clark p. 201, 482, 545 

Erwin's Appeal 183, 6l*i 

Eshleman. diaries p. 759, 760 

Ksler p. Townsite of Cooke 507, 524 

Esmeralda M. Co., Great Eastern M. 

Co. r. 874. 401 

Esmond p. Chew 609, 641 

Esteriy's Appeal 779 

Estieyenard. Coal Co. p. 79) 

Etowah & Battle Branch M. Co., Im- 

boden r. 66« 

Etting p. Potter 881 

Eureka Case 417, 488, 446, 448, 460. 478 
Eureka, Jenny Lind p. 364, 408 



Eureka Con. M. Co. v. Bichmond M. 

Co. 417, 488, 446^ 448, 460, 478 

Eureka Gulch M. Co., Hunt v. 396 

Eureka Hill M. Co., BuUion, Beck & 

Champion M. Co. v. 470 

Eureka Lake Co., Weaver v, 649 

Eureka Lake & Yuba Canal Co. v. 

Superior Court 726 

Eureka M. Co., Southern Cross G. & 

S. M. Co. V. 221, 283, 249 

Evans v. Haefner 187 

, McGillivray v. 749 

V. Kandall 404 

, ZoUars v. 216, 440 

Everett v. Hydraulic Flume T. Co. 666 
Evins, Lorenzo D. 668 

Ewing V. Hartman 648 

i;. Sandoval C. & M. Co. 679 

Excelsior No. I, Black Queeo v, 414 

Fabiav v. Collios 666, 669 

Fairbanks v. Woodhoute 287 

Fairchild v. Fairchlld 18, 42, 47, 121 

Fairfield v. Wyoming V. Coal Co. 769 
Falk, Quirk v. 848 

Fall, SUver Mining Co. v. 742 

Falls r. McAfee 781, 788 

Farley o. Spring Valley M. |b I. Co. 664 
Famsworth, Ulmer o. 684 

Famum v. Piatt 88, 84, 686 

Farquharson, Meyers v. 848 

Farrand r. Marshall 687 

Faxon v. Baniard 197, 244, 264, 820 

Feather River Co., Jackson v, 841 

Federy, Beard v. 419 

Felger v. Coward 848 

Fell V. Rich Hill Coal M. Co. TOO 

Fellows, Griffin v. 8. 12, 17 

Fennel v. Guffev 112, 139, 168 

Ferguson v. Bel voir M. & M. Co. 279, 316 

V. Hanson 862, 368 

, Hooper v. 877 

, Magalia G. M. Co. o. 877 

V. Neville 206 

, Powell V. 414 

Fernandez v. Burleson 773 

Ferrell v. Hoge 214, 220, 222, 480, 482 

, Moore v. 727 

Fett. Goller v, 342, 343, 746 
Field i;. Gray 3*24 
Fifteenth District Court, Goodale r. 738 
Findlay v. Smith 16, 606 
Findley v. Armstrong 600 
Fire Brick Co., Goss v. 139 
Fire Creek Coal & Coke Co., State v. 770 
First National Bnnk v, Bissell 754 
, Princeton M. Co. v. 207 

345, 397. 521 


r. Shenfer 

r. Suessenhach 

Fishback v. Miller 
Fisher v. Milliken 

, Seymour o. 

V. Worrall 


282, 268, 896, 427 


Fitcgerald v. Clark 468 

V. Urton 196 

Flagsuff S. M. Co. v. Collios 779 

, CuUins i;. 779 

i;. Tarbet 448, 464, ^2 

Flaherty v. Gwinn 242, 800 

Flanagan* Ballard v. 560 

Flavin t;. Mattingly 247 

Fleetwood Lode 5^ 

Fleming 0. & G. Co. v. South Penna. 

O. Co. n« 

Fletcher, Bewick e. 128 

, Hanson v, 260, 269 

. Mills V. 273 

, Phcenix Water Co. v. 649 

Flick p. Gold HiU & Lee MoonUin 

M. Co. 220, 248 

Florence Oil Co., Harnogtoo v. 747 

Florida Ry. ft Ma¥. Co., Tucker v. 640 
Flory V. Heller 117 

Flynn r. Coal Co. 106 

Fontanet M. Aua., Bhull v. 774 

Foote V. National MiniogOo. S19, 26B, 460 
Forbes v. Gracey 6, 819, 84$ 

Ford, Canfleld o. 4|, 7dO 

— , Ducie P. 424 

— ^, Hobart v. 606 

Forst, Hooks v. 17$ 

Forsyth v. Wells 701 

Fort Scott C. it M. Co. v. Sweeny 9E 
49 & 66 QuarU M. Co., Brovo v. 468 
Foss, Bissell r. 764 

Foster, Frank 666 

V, Runk 86 

p. Weaver 716 

420 Mining Co. p. Bullion Mining Po. 888, 

Fowler, Atherton p. 821, 428, 684 

Fox, Deep River G. M. Co. p. 731 

Francoeur p. Newhouse 198, 688, 670 

Frank G. & S. M. Co. p. Larioier M. 

& S. Co. 880 

Frankenfield, Periepi p. 779 

Franklin Co. p. Coal Co. 16, 61 

Franklin Coal Co., Gloninger p. 66, 68 

V. McMillan 0. 697 

Franklin Lode 402 

Franklin Mining Co. v. O'Brien 746 

Franklinite Co., Zinc Co. v. 131, 132 

Frazier, Manning v. 38, 69, 119 

Freck v. Locust Mt. Coal Co. 126, 701 
Freer v. Stotenburg 16 

Frees v. Colorado 632 

Freezer o. Sweeney 199, 869, 480 

Fremont, Merced M. Co. p. 824, 886, 721, 


p. Seals 670 

French v. Brewer 720 

V. Lancaster 64(5 

, Rush V. 210, 286, 302, 324, 384, 340 

Kretts, Venture Oil Co. p. 77, 174, 176 
Prey v. Lowden 654 

Frick Coke Co., Moreland p. 674 

Fricke Coke Co., Lewey p. 702 



Priclw Coke C6., Rainey v, 20 

Fricot. AttwocMl V. 288, 823, fi%, 34 1 

Friedt'DSTille Zinc Co., })of^ v. 134, 612 

313, 428 
909. 244, 252 

Friend v. Porter 
Friatas, Correa r. 
Fritzler r. Rpbinson 
Frohner, Meyendoif v. 
Frqrer r. People 
Fuller r. Harris 

p. Swan River Bfinipg Co. 610, 655, 

Fullerton, Little Jo8epl|iiie 1|. Co. v. 474 
Falmer't Appeal 28 

Folnier, Bojer v, 89, 00, 09 

, Williams v, 627 

Fulton, Caldwell r. 4^, 44, ^, 63, 66, 73. 

Fank p. Haldeman 83, 60, 64, 77. m, 82 

p. Sterrett 826, aS7 

Fomaoe Ca, Sloan v. 44, 85 

W, 69, 1^4 




m, 666, 670 


Qafpicis, Kamphoosa v. 
6«ge. Conti^ml Co. p. 
Gainet r. Mining Co. 
G«|e p. Pest 
^— . Davis r. 

p. Petroleom Co. 

Galena M. & S. Co., Tonsley v. W 

Galej p: Kellerroan lU, Ij^, 161 

Gallagher, Batey v. 643 

^— p. Kemmerer 627 

i Keystopo M. Po. p. 773 

Gailowaj p. Campbel} 738 

Gamble, Montooth p. i%, 46, 48, |29 

Gamer p. Glenn 248 

Gantvrp. Atji^inifin 5«i 

Gardner p. Resumption If* k S. Co. 772 
Garflelii flf. & M. Co. 834 

p. Hammer ^, 247, 329 

r— , Rammer v, 204, H^ 802, 329 

Garman p. Potts 97 

Gamer, Watkins p. 550 

Garringer, Woolmanv. 656 

Garrison, Uhlig p. 546 

Garthe p. Han 8$17, 844 

GtrUide p. Ootley 61 

Ganrey p. Ganther 71 

Gary p. Todd 200, 545 

Gaston r. Plum 56 

Gatewood v. McLaughlin 341 

Geiger p. Green 57 

Geldch p. Moriarty 106, 230, 826 

General Elec. Co., Hewitt p. 128 

Genet p. Delaware & Hudson Canal 

Co. 42, 101, 578, 582, 611, 635 

George, Western Penna. Gas Co. p. 143 
Georgia Slate Co. p. Davitte 727 

Gerhaoser, R. T. 856, 481 

German Coal Co., (Sholl p. 145, 585, 593 
Germania Coal Co., Gray v. 702 

Geramoia lion Co. p. United SUtes 434 
Geyser Qaicksi)ver M. Co., Stone v. 297 
0ilMon, A. J. 361 

Gibson v. Olive? 166 

, Paris 532 

p. Tyson 138 

, VViUlams p. 87, 578 

Giffin p. Southwest Pa. Ffpo LMim 703 
Gilbert, Hughes v. 865 

, Scranton p. 116 

Gilchrist's Appeal 182 

Gill. Richar4 658 

p. Weston 142 

Gillan p. Hutchinson 19^ 

Gillett, QuigUy p. 273, 894 

— p. Treganza 66 

Gillis, Ryckmao v. 60, 68b 

, Stinchfield p. 474 

GilmoTO p. DriscoU 677 

-^^ p. Ontario Iron Co. 109 

Gilpin y. Sioi?» Nevada Oon. M. Co. 465, 

Gilpin Ca p. Drake 246 

Ginocehio p. Amador Canal & M. Co. 843 
Qirard p. Carson 428 

-rr— , Miller p. 299 

Girard Coal Co. v. Wiggins 789 

Qtrd p. California Oil Co. 196, 280, 234, 

245, 260, ^, 272 
Gironx p. 8eb^9lrmall 414 

Ql«l)om, Houtz p. 346 

Glacier Moimtain S. M. 0o. v. l^Uis 286, 

323, 334, 496, 570 
Glasgow p. Chaniers Oil Co. 166 

Gleeson p. Martip White M. Co. 225, 233, 

Glenn, G^mer v- 248 

, 0*Donnell p. 220, 288, 948, 250 

Qloniger p. Franklin Coal Oo. 66, 68 

God/sbariei p. Wlgofnan 769 

Goddaind's Appeal 138 

Godfrey, Nesbit p. 149 

Goetz, CHi?er p. 15^ 

Gold Hill & Lee Mountain M. Co., 

Flick p. 220, 248 

Gold Hill Q. M. Co. p. Ish 178 

Gold Lead G. & 8. M. Co., Steel s. 305, 


Gold Run D. & M. Co., People p. 621 

Gold Springs & Denver City Mill Site 509 

Golden Fleece G. & 8. M. Co. p. Cable 

Con. G. & S. M. Co. 199, 207, 298, 314. 

Golden Gate M. Co. v. Superior Court 726 
Golden Sun M. Co. 356 

Golden Terra Co. v. Smith 210, 546 

Goller p. Fett 342, 848, 745 

Gonu V. Russell 276, 313 

Good, Sillingford p. 121 

Good Return Mining Co. 279, 850, 862, 

Goodale v. Fifteenth District Court 738 
Goodwill, State v. 770 
Gore V. McBrayer 211, 284, 286, 841 
Gorman Mining Co. p. Alexander 207 
Gormlev, Lyon p. 6, 187, 697 
, Wetteogel p. 75, 77 



Gorreli, LoeuBt Mountain Cotl Co. v. 685 

, Pre vest V. 082 

Gobs v. Fire Brick Co. 189 

Gourdier v, Cormack 687 

Gowdy V. Kiamet G. M. Co. 866, 868, 

410, 414 
Graoej, Forbes v. 6, 819, 846 

Grady v. Early 886 

Graham v. Newberg Oriel C. & C. Co. 793 

, Kockwell V, 894, 666 

Grampian Lode 279, 406 

Granby M. & S. Co., Chynowitch v, 71 

V. Turley 776 

Grand View M. & S. Co, Bailey v, 866 
Granger Coal Co., Carl v. 92 

Granite Mountain M. Co.,Wein8tein v. 

, West Granite Mountain M Co. v, 

Grant, Law v. 716 

, Weist 17. 716 

Gray, Field v, 824 

V. Germania Coal Ca 792 

y'Hoset;.' ^ 141 

•— , Roach 17. "' 287 

17. Truby 218 

Gray £agle PUcer, Hawkeye Placer v. 

Great Eastern M. Co. v, Esmeralda 

M. Co. 874, 407 

Great Western Lode Claim 866 

Green t;. Ashland Iron Co. 6 

, Geiger v. 67 

, Inhabitants of Worcester i7. 89, 680 

— , Keeler v. 114 

V. Putnam 680 

Green River Coal Assn., Mc Williams p. 

Greenough's Appeal 121 

Greensburg Fuel Co. v. Irwin Nat 

Gas Co. 83 

Gregg, H. M. 606 

Gregory, Beatty v. 68, 69, 172 

». Harris 610 

V. Pershbaker 214,218,288,241,478, 

Gregovich, Sever v, 207, 814 

Gribben v. Atkinson 98 

Griffin, Deno v, 278, 401, 428 

V. Fellows 8, 12, 17 

, Keeling v. ' 697 

, Southern Pac. B. Co. v. 876, 640 

Griffith, Priddy ». 9 

f Waters v. 67 

Grogan, Springside Coal M. Co. o. 782, 

Gropper v. King 292, 329 

Grosfleld v. Nigger Hill Con. M. Co. 493 
Ground Hog Lode v. Parole 412 

Grove v. Hodges 68 

Grubb's Appeal 27, 28, 66, 733, 764 

Grubb V. Bayard 66, 69, 61, 67 

— -, Coleman i?. 24 

— r. Grubb 27, 28, 64, 65 

Grubb 17. Guilfoid 
Gruber v. Baker 
Grunsfleld, Alfred 
Guano Co., State o. 
Guffey 17. Clever 

, Fennel v, 

17. HukiU 

, Hukill 17. 

, Wolf 17. 

Guffy, Williams v. 
GuUford, Grubb v. 
Gumbert v, Kilgore 

, McCracken v. 

Gunboat, Terrible v. 
Gunnison C. M. Co. 
Gunther, Garvey t7. 
Gwillim 17. DonnelUm 
Gwinn, Flaherty v. 




182, 708 


11% 189, 163 

168, 169 





673, 688 







Haas, Slater t7. 760 

Haddock v. Commonwealth 783 

Haefner, Evans v, 187 

Haenssler v. Missouri Iron C<». 21 

Haggin, Dougherty v. 668 

Hagland, Gustavus 873, 407 

Hague, Duke v. 76 

17. Wheeler 83 

Hail 17. Reed 81 

Haines, Vansickle t7. 667 

Hairston, Barksdale v. 66, 78 

Haldeman v. Bruckhart 673 

, Funk 17. 82, 69, 64, 77. 80, 82 

Halden, Randolph v, ] 13 

Hale, Robert S. 200, 481 

, Hall 17. 274 

Hale & Norcross G. & S. Bi. Co. v. 

Storey County 329 

Hall 17. Arnott 199, 310 

, DesMoines ». 184 

V. Hale 274 

17. Kearny 275 

, Kendall v, 667 

V. Litchfield 666 

17. Street 874, 408 

, Sylvester v. 92 

Halloway, Smith v, 186 

Hallowell, J. W. 666 

Haltenhoff, Whitman v, 868 

Hamberg C. M. Co., Dolles t7. 279 

Hamburg M. Co. v. Stephenson 606 

Hamerstag, Moore v. 211, 344 

Hamilton v. Anderson 660 

— - V. Jutte 769 

, Righter v. 18 

V. Southern Nevada G. & S. M. 

Co. 322, 891, 424, 670 

, Speflke V. 668 

r. Sute 781 

, Tennessee C. & I. Co. v. 620 

Hammer v, Garfield M. & M. Co. 204, 802. 

246 329 334 

, Garfield M. & M. Co. v, '206,'247, 



Htncoek, Katoma W. & 11 Co. v. 664 
Hand 6. K. Co. v. Parker 060 

Hanna, Reynolda v. 11 

HanoTer Coal Co^ Bodcafellow v. 688, 688 
Hanaen, Mulligan o. 378 

HaniOD, Fergoaoo v. 362, 368 

V. Fletcher 260, 269 

Hardeman, Cowan v. 683 

Hardenbergh v. Bacon 348 

Hardin, Frank P. 606 

Harding v. People 768 

Hardt u. Uhorij Hill Con. M. & W. 

Ca 618 

Hare v. Mclntire 790 

HargroTe r. Robertson 610 

Harkins, Dughi r. 377 

Harknen, Bradley v. 762, 766 

V. Burton 16, 70 

Harlan v. Lehigh C. ft Nar. Co. 44, 96 
Harlow e. Lake Superior L Co. 16, 61, 68 
Hamej Peak T. M. Bi. ft M. Co., 

221, 889, 401 
263, 269, 889 


Marshall v. 
Hamish v. Wallace 
Harrington v. Chambers 

, Chambers o. 

V. Florence Oil Co. 

f Johnston r. 

Harris v. Equator M. ft 8. Co. 822 

, Fuller r. 209, 244, 252 

, Gregory v. 610 

p. Lloyd 768 

p. Trson 714 

Harrison,'F. P. 261,279,316,360,874,430 
Harsh, Albert F. 407 

Hart, Baker v. 62, 61, 700 

, Cheesman v. 241, 466 

, Garthe v, 327, 344 

V. Plum 341 

Hartford Co. v. Miller 2p 

Hartford L M. Co. v. Cambria M. Co. 39, 

Hartiej, Ackerman v. 62, 729 

Hartman, Ewing p. 643 

r. Smith 606 

Hartwell r. Camman 40 

Hartzell, Commonwealth v. 770 

Harrey r. Chilton 647 

p. Lloyd 696 

p. Ryan 287, 289 

p. Sides S. M. Co. 611 

p. Thomas 694, 695 

Harvey's Heirs, Anderson v. 7.36 

Haskell, Orr p. 292 

Hasson v. OU Creek ft Allegheny R. 

Co. 686 

Hastings, Walsh v. 666 

Hatch, Shoemaker p. 666 

^^**ry, Ogden p. 163 

Hauck, John C. 367 

Hauswurth v. Butcher 266 

HaTerty, Murray v. 21 

HawesTiUe v. Hawes' Heirs 186, 696 

Oiwke, Deffeback p. 197, 872, 423, 614, 

616, 617, 618, 624, 641 

Hawke. Robert 436 

Hawkeye Placer p. Gray Eagle Placer 413 
Hawkins p. Pepper 164 

p. Spokane H. M. Ca 761 

Haws p. Victoria Copper M. Co. 241, 334 
Hay, Lowry p. 683 

, WUliams p. 684 

Hay den p. Jamison 201, 646 

Hayes, Alden Gulch Con. M. C. p. 656 
Hays P. Briggs 698 

p. Risher 696, 598 

Hazlett, Clary v. 490 

HeadUght Lode 854 

Healer, Wesley City Coal Co. p. 787 
Heaney p. Butte & Montana Com. Co. 

Heathoock, Roes p. 1 27 

Heckman's EsUte 121 

Hecksher p. Sheafer 1 16, 683 

Hecla ConsoUdated Bl Co. 608, 509 

Heffner p. Lewis 129 

Heil p. Strong 17 

Heintz p. Shortt 164 

Heller, Flory p. 117 

Helm p. Chapman 772 

Henderson p. Allen 755 

Hendree, Atkms p. 268, 812 

Hendricks v. Spring Valley M. ft I. 

686, 694 


92, 120, 171 







574, 675 

290, 827 

196, 198, 725 

276, 804, 337 


Hendriz p. McBeth 

, McDowell p. 

Hendsch, Parks p. 
Henke, Lenfers p. 
Henley, John C. 
Henning, Muhlenberg p. 
Henry, Davis p. 

p. Lowe 

—^f Wilson p. 
Hense, Sullivan p. 
Henshaw p. Clark 
Herbert v. King 
Hermocilla v. Hubbell 
Herter, Thomas Presaed Brick Co. r. 696 
Hess V. Winder 821, 322, 825, 725 

Hewitt p. General Elec. Co. 128 

Heydenfeldt p. Daney G. M. Co. 418, 

Hickey, M. A. ft E. 
Hicks p. Bell 

p. Consolidated Coal Ca 

V. Jennings 

Higgins p. Armstrong 
Hilgard, Daniels v. 
Hill P. Jo3' 

p. King 

p. Newman 

— ^ p. Pardee 
— p. Smith 

, Smith p. 

p. Taylor 

, Whiting p. 

Hillside C. ft L Co., Kingsley v. 

Plummer p. 


178, 196 

761, 760 


621, 650 
48, 77, 176, 674 



Himes v. Johnson 658 

Ilindman v. Ri2or 667 

Hindson v. Markle 629 

Hirbour r. Reeding 212, 845 

Hirschler v. McKendrickt 277 

Hitchcock, Patterson i;. 224, 468 

Hobart p. Ford 666 

V, Murray 40, 61 

Hobbs V. Amador A Sflcnunento Canal 

Co. 622 

Hoch V. Bass 158, 161, 784 

, Nelson w. 681 

Hodge, Ray ». 107 

Hodges, Grotes if, 68 

Hodgson v. Perkins 78, 177 

Hoffman v. Beecher 899 

0, Stone . 648, 670 

V. Tuolumne County W. Co. 666 

V. Venard 867 

lloge, Terrell tt, 2l4, iSCl, 222, 480, 482 
Hoggin, J. B. 607 

Hoke, Carter v. 788 

Holdman, Darragh v. 544 

Holland v. Mount Auburn G. Q. M. 

Co. 280 

Holley, Marsh v. 20, 746 

Holllday, Dobscbuetz v. 128 

HoUidavsburg ft Ga|) Iron Wdrks, 

Duncan v. 
Hollinshead v. Allen 
Holier, Columbia M. Co. tf. 
Honaker t*. Martin 
Honey man v. Thomas 
Honor v. Roberts 
Hook V. Latham 
Hooks V. Forst 
Hooper v. Ferguson 
Hope's Appeal 
Hope Mining Co.^ In re 

V. Brown 

Hopkins v. Hudson 

V. Noyes 

Horan, McCormlck v. 

Homer v. Watson 

Horner & Roberts' Lateral Railroad 505 


8, 12, 17 


277, 814 








897, 498, 499, 602 





Horrid V. Old Missouri 
Horswell v. Ruiz 
Hosie V. Gray 
Hoskinson, Sayers v. 
Hosmer, Reynolds v. 
Houghton V. McDermott 
Houtz P. Gisborn 
Howard, Maguire v. 

, Michael 

Howe, Bohanon v. 
Howell, Decker v. 
Hoy i;. Smith 

Hoyt, Parks Canal & M. Co. v. 
HubbelK Hermocilla o. 
Huber, Welland v. 
Huddell, In re 
Hudson, HopklM 9. 
Hudson Iron Co.« Stockbridge Iron 
Co. V. 67, 69, 84 












Hiidsrm IHailig Co. 609 

Hue, Duffield v. 9A, 129. 150, 169, 784 
Huff V. McCauley 64, 72 

, Van YUnkeiibiirg v. 91i 

Hughes V. Deylin 826, 749 

t. Gilbert 865 

V. United Pipe Lines 82, 700 

-" — V. Westmoreland Gotl Co. 120 

Hngunin v. McCunltifl 694 

Hukill V. Guffey 168 

, Guffey i;. 168, 169 

V. MyerA 169 

, Schaupp V, 168 

, Thomas v. 169, 784 

Hull V, McDonald 20 

Hume, Brennan v, 668 

Humphrey, Burgner 0. 120, 680 

Humphreys, Donnel v, 669 

Hungarian HIU Ghir^l M. Co. v. 

Moies 668 

Hunnewill, Ki#mtfn v. 671 

Hnnt V. Eureka Gulch M. Co. 896 

V. Patchin 2lO, «91, 409, 670 

V. Stees^ 686, 72B 

Hunter, Devereuz v. 878 

, Preston v. 241, 261 

— ^ V. Savage C. 8. M. Co. 777 

Huntsville C. ft M. Co., AlMtin v. 40, 

120, 698 
Rurd, Childs v. 122, 142 

Hnribut, P. D. 606 

Husby, Brady v. 249 

Hnssey Lode, L. B. 409 

Hutchinson, Gillan v, 196 

, Zeckendorf u. 846 

Hutchison, Commonwealth v. 784 
Hydraulic Flume T. Co., Ererett v. 666 
Hyman, McEvoy v. 961, 891, 428 
-p— , Meyer v. 874, 409 
V. Wlieeler 454 

Idaho Co., Jordan v, 200 

Illinois Coal Co. v. Ogle 696 

Illinois S. M. & M. Co. v. Raff 469 

Imboden v. Etowah A Battle Branch 

M. Co, 660 

Independence Lode 852 

Independent Ditch Co., Leigh Co. v. 646 
Indianapolis Nat. Gas Co. v. Kibbey 

124, 728 
Inhabitants of Worcester v. Green 39, 

Interrenor M. Co., Tilden v. 866 

lola Lode Case 406 

Iowa V. Bonanza 405 

Iowa Gulch M. Co. v. Roserllto Alta 

M. Co. 845 

Irish, Ramelli v. 665 

Iron King M. & M. Site 60S 

Iron Mine v. Loella Mine 449 

Iron Silver M. Cd. v. Gan^Ml 892, 

-:— tf . Clieesaisti 460 



Iron Siber M. Cb. v. Elgio M. Co. 463, 

466 469 
9. Mite ft Start M. Co. 411^ 466', 489 

— ». Reynolds 
, Reynolds c. 

— fc SuUlTan 
— — , SulliTan r. 

-s — ^, United StAtCt Di 
Irent, Bowman o. 
Irrine, O'Connor 9, 
btin 9. CoTode 

— p. DaTidson 


831, 333, 483, 486 









-i — V. PhilliiM 

InHo Ndt Gat Coii Ortaoiburg Fuel 

Cav. 83 

Isaksen, Long v. 202 

Isenb^rff, Commonwealth b. 769 

bh, Gcfid HtU Q. M. Co. »; 178 

IwD tf. Nelson M. Co. 648 

Iranhoe M. Co. v. Keystone C6tl. M. 

Co. 196^ 628, 680 

It«t, Rosenthal v. 291, 807, 479 

iiCKS, Pereira v. 

^•ckiM 9. Dines 

— - V. Feather RiTer Co. 

^— , Jones V. 

— V, Roby 

— '-, Tliomas J. 

V. Walton 

Jaekion Miniiig Cd 
Jaeob V. Lorenz 

, Lorenz v. 

Jtcobi, Thompson v. 
James, l>aPrat v, 
V. Williams 












190, 231, 273, 309 


Jamestown ft FranUin B. Co. v. Eg- 
bert 105 
Jaiftie Lee Lode o. LIttte Fdtef>aUgh 

Lode 411 

Jamison, Baker v. 194 

, Hayden v. 201, 645 

JsDtaen v. Arizona Copper Co. 206, 280, 

237, 241 
Jefferson Gas Co., Daris v. 192, 686 

, Wallace V, 193 

Jefferson G. ft S. M. Co., Pralns v. 289, 

Jeffray, Mary E. 
Jenkins v. Clyde Coal Co. 

, State V.' 

JeBnings v. Beale 

, Hicks 9. 

"— , Proctor 9. 

9. Rickard 

Jennison 9. Kirk 

Jenny Lind v. Eureka 

Jepfloifi Roberts 9. 

'erem^ v. ThomxMon 

Jerome 9. Rdte 

Jms, Wilms 9. 

ItUion, AnMofljr v. 

Mn Dare S. M. Co., Leel b. 









060, 666 

364, 403 



788, 780, 736 

20d; 281, 2«i, 804 

Johns V. Marsh 380 

Johnson 9. Buell 464 

-i— , Creswell M. Co. v. 378 

— '", Donahue v. 830 

— ^, English 9. 280, 241, 261, 288, 821, 

-^^, Hlmes 9. 663 

' — -' 9. McLaughlin 287, 802 

-^, SoUiday v. 182 

9. Sotith Dakota 660 

-'-^, Washington Nat Gas Co. 9. .188 
-ii^i— 9. Young 812 

Johnston 9. C<^an 63 

, Dark 9. 82. 80 

— : — P. Harrington 666 

9. Morris 629 

— ^ 9. Price 747 

Johnstons 9; HbbltMOii 200 

Johhsto#d l^oh Co. ^* €ittaMti Iron 

Co. 66, 62, 64, 66, 73 

Jones^ Chambers 9. 628 

— ^ 9. Clark 767 

-:ii^, CUurk 9. 160 

-i^, Clegg 9. 737 

■^ — , Coal Run Coal Co. 0. 782 

-=— , Commonwealth b. 786 

-i— 9. Driver 860, 644 

1*. Jacksdfi 608 

-^ — , James A. 661, 662 

9. Mfthaski Oodilty Coal C0. 69^ 

9. People 7B7 

p. Prospect M. Co. 443, 468 

— ^— 9. Robertsorl 68^ 

, Robertson 9. 696 

, Rounsley 9. 126 

9. Strong Id 

». Wagner 677, 681 

9. West Penna. Nat. Gis Co. 164 

Williamson v. 16, 29, 81, 789 

Joplin M. Co., Clowser 9. 19 

Jordan, Alice 66Sf 

Davidson 9. ' 709 

V. Idaho Co. 200 

Joy, Hill 9. 105 

Judd, Merritt 9. 128 

Jndge 9. Braswell 762 

Juniata Lode 493 

Junkans v. Burgin 654 

Jupiter M. Co. 9. Bodle Con. M. Co. 21 7» 
229, 240, 244, 257, 280, 286, 302, 460 
Justice V. Alabama 56? 

Justice M. Co., Book v. 210, 218, 229, 271, 


r. Lee 427 

, 1.^6 9. 206 

Jutte, Hamilton 9. 769 

Kahw r. Central Smelting Co. 764 

-^ 9. Old Telegraph M. Cb. 233, 429, 

469, 78l6, 747 
Kilmphbuse 9. Gaflfner 86, 69, 124 

liMie 9. Devine 878 

Kannaugh 9. Quartette M. Co. 396 












111, 168, 161 

201, 480, 482 




Kanias Ci^ M. & M. Co. v. Clay 
K. C, St J. & C. B. B.Co.,Child8 v. 
Karns v. Tanner 
Kearney, Hall o. 

, Swain v. 

Keeler v. Green 
-^— V. Tmeman 
Keelej, Patchen «. 
Keeling v, OriiBn 
Kellerman, Galey v. 
Kelly, Conlin v. 

r. Donahoe 

V. Natoma W. k M. Co. 

V. Taylor 

Kemble v. Kemble 
Kemble C. & L Co. v. Soott 06, 08 

Kemmerer, Gallagher v, 627 

Kemp, St. Louis Smelting &Bflfining 
Co.v. 260,261,268,860,860,418,421, 

48% 478, 643 
Kempton Mine 862, 869 

Kenc&U v, HaU 667 

— — V. San Juan S. M. Co. 646 

Kendall Mountain Placer 867 

Kenkle, McShane v. 220 

Kennedy v. Crawford 162 

Kenrick v. Smick 160, 161 

Kentucky Coal Co., Beliance Coal 

Co. V. 690 

Kentucky & Montana G. & 8. M. Co., 

Smallhouse v. 776 

Kern, Rerick v, 80 

Kerr, Parley's Park S. M. Co. v. 267, 286 
— V, Utah- Wyoming ImproYement 

Co. 666 

Keystone Con. M. Co. r. California 631 

, Ivanhoe M. Co. v. 196, 628, 680 

Keystone L. & M. Site v. Nevada 632 
Keystone M. Co. v. Gallagher 778 

, Patterson r. 842 

Khem, G. A. 866, 481 

Kibbey, Indianapolis N. G. Co. v. 124, 

Kidd V. Laird 

, Nevada C. & 8. Co. 0^ 

, St. John V. 

Kier v. Peterson 

, Richardson v. 

Kilgore, Gumbert v. 

Kilham, Parke v. 

Kille, Ege v, 

Kincaid v. McGowan 

King i;. Amy & Silversmith M. Co. 468, 

460, 467, 468 
101, 148, 160, 199, 291, 

804, 813, 680 

276^ 304, 837 

620, 646 


878, 896; 428, 621, 622 


King Bridge Co., 81 AntboDy FaUa 



» 808,342 

17, 82, 183 


673, 688 




- V. Edwards 

-, Cropper v. 
-, Herbert v. 
-, Hill V. 

- V. Randlett 
-, Talbott o. 

- V. Thomas 
% United Stotea «. 

W. P. Co. ». 
King of the West, City Bock v. 
Kingdom, Bliss v. 
Kings County v. Alexander 
Kingsley v. Hillside C. ft L Co. 

Kingston Coal Co., DorUn v. 
Kinkaid, John 
Kirk, Jennison v. 

, Titoomb ». 

Kirman v. Hunnewill 
Kirtiey, BlarshaU 8. M. Co. v. 
Kismet G. M. Co., Gowdy v. 





410, 414 











Kistler v. Thompson 
Kitchen v. Smith 
Kleppner o. Lemon 
Kline v. Stephan 
Knabe, Julius P. 
Knapp, Joseph M. 
Kneeuind v, Norton 
Knight V. Coal Co. 

, Thomas M. 

Knisley, Bucker o. 

Koch's Appeal 

Koch, Dargin v. 

Koegel, Berg r. 

Koen V. Bartlett 

KoUock, In re 

Komiskey, Plymouth Co. v. 

Kramer r. Settle 212, 242, 264, 276, 304 

Krause v. Morgan 701 

Kreiser, Blindert v. 74 

Krentz, McKnight u. 100, 166, 166 

Kroll, WesUng v. 170 

Kunkle, Spencer v. 125 

Lacbt v. Woodward 278 

Lachman, Skillman v. 764, 755 

Lackawanna & Bloomsburg B. Co., 

Searle v, 100, 191 

Lackawanna Coal Co., Lillibridge v, 37, 

47, 87, 145, 687, 688, 689 
Lacoe, Drake v. 121, 165 

Lacustrine Fertilizer Co. v. Lake 

Guano & Fertilizer Co. 4, 6, 41 

Ladley t;. Creighton 141 

Lafave, Seidler v. 249 

Laird, Kidd v. 648, 655 

Lake Champlain Granite Co., Arm- 
strong V. 133 
Lake Guano & Fertilizer Co., Lacus- 
trine Fertilizer Co. v. 4, 6, 41 
Lake Superior Co. v, McCann 128 
Lake Superior Iron Co., Harlow v. 16, 61 , 

Lakin v. Dolly 267, 369 

V. Boberts 267, 425 

9. Sierra Buttes G. M. Ca 271,802, 

Lamb, Colorado C. 4 L Co. v. 780 

— vMQloovk 



Lamlmrd, MeltMi v. 843, 746 

Lammers, Cowell c. 422, 684 

Lamotte Lead Co., Lnniford v. 71 

I^ncii9Cer, French p. 646 

Unce r. Lehigh & Wilkeshure Goal 

Co. 184^ 668» 689, 613 

Landon, Barnum v. 740 

Lane, Bronson f. 
Laney, Thomas J. 
Lantsy, Powell v. 
I^rgent, Edward B. 
Largey v. Black 

-, Blue Bird M. Co. v. 






I^rimer M. & S. Co., Fhmk G. 4 S. 

M. Co. p. 889 

Jerkin P. Upton 217, 220, 456 

I^ Salle, Matthiesten & Hegeler Zinc 
Co. r. 184, 686 

, Union Coal Co. p. 184 

Last Chance M. Ca p. Tyler H Co. 426, 


, Tyler M. Co. p. 461 

r^bam. Hook p. 208 

UveUe, MoritK p. 211 

Uw p. Grant 716 

Lawrence's Appeal 190, 681 

l>awrence p. Kobinson 769 

Lacania' Estate 42, 48 

Leach, Waterrale &I. Co. v. 474 

Lead City Townsite p. Mhienl Claim- 
ants 486 
T^adviUe Lode, Little Fanliiie p. 279, 316 
l>earj v. Manuel 206, 412 
lipatherman p. Oliyer 104 
Iipavers p. Cleary 679 
Ivebanon M. Co., Consolidated Repub- 
lican Mountam M. Co. p. 212, 274 
Lebanon M. Co. of N. Y. p. Consoli- 
dated Repablican M. Co. 810, 887, 844, 


, Wolfley p. 218, 290, 863, 468, 464. 

Ticdger Lode 
I^e, Bradley p. 

p. Bumgardner 

-^— p. Justice M. Co. 

, Justice 11. Co. p. 

p. Stahl 

, Territory p. 

, Thompson p. 

, White p. 

Tx-e Doon p. Tesh 
I^et V. John I^re S. M. Ca 
I-^*Fevre p. LeFerre 
I<<ez(ratt r. Stewart 
lieitigh Coal & Nay. Co., Harlan p. 44, 95 
Tiehiirh Valley Coal Co., Mulhern v, 792 
Uliigh & Wilkesharre Coal Co., 
Lance r. 134, 683, 689, 618 

p. Wright 99. 105, 122 

Lehigh Zinc & Iron Co. p. Bamford 90. 

119, 707 
— -, Bamford p. 90 

— — p. New Jersey Z. & I Co 132 

407, 412 





894, 476, 476 



231, 479 





Leigh Co. p. Independent Diteh Co. 646 
L^ininger's Appeal 733 

Leitham p. Cusick 718, 786 

Lemon, Kleppner p. 106, 111 

LeNeve Mill Site 608 

Lenfeiv p. Heoke 9, 749 

Lennig, Charles 607 

Lennon, McLean Covn^ GL Cow 9. 096 
Lents 9. Carnegie 028 

p. Victor 386 

Leonard p. Peoples 709 

Leport p. Mining Ca 6, 18 

LeRoy v, Wright 723 

LeSieur, Darger p. 249 

Leslie p. Rich Hill C. M. G«w 790 

Leyaroni p. Miller 196 

Leyitt, Snell p. 828 

Lewey p. Fricke Coke Co. 70*i& 

Lewis, Chevington & Bumi Ca p. 116 

, Heffner p. 129 

, Northern Pacifle R. Ca p. 604 

Lewishon. Catron p. 414 

Lewisohn, Mattingly p. 277, 399 

Lexington Coal M. Ca, Dunint p. 790 
Lezeart v. Dunker 667 

Liberty Hill Con. M. & W. Co., 

Hardt p. 618 

Lillibridge p. Lackawanna Coal Co. 87, 

47, 87, 146, 687, 688, 689 
Lincoln p. Rodgers Oil 

Lincoln Lode 406 

Lincoln Placer 351, 356 

Lineoski p. Susquehanna Coal Co. 792 
Linton C. & M. Co. p. Persons 789 

Lippincott, Mine Hill & S. H. R. Co. p. 100, 

Lipscomb v. Nichols 555 

Litchfield. Hall p. 560 

Litchfield Coal Co. p. Taylor 787 

Little Chief Con. M. Co., Little Pitts- 
burg Con. M. Co. p. 095 
Little Forepangh Lode, Jan^ie Lee 

Lode p. 411 

Little Giant Lode 414 

Little Josephine M. Co. p. Fullerton 474 
Little Pauline r. Leadville Lode 279, 315 ' 
Little Pet Lode 351 ^ 

Little Pittsburg Con. M. Co. p. Amte 
M. Co. 217, 296, .310 

p. Little Chief Con. M. Co. 695 

Little Schuylkill N. R. &C. Co. v, Rich- 
ards 625 

V. Tamaqua ♦>H0 

Live Yankee Co. v. Oregon Co. 2()i 

Livingston v. Livingston 721 

p. Moingona Coal Co. 070 

p. Peni Iron Co. 713 

Lizzie Bullock Mining Claims Bo') 

Lloyd, Blair Iron Co. o. 701 

, Harris p. 763 

, Harvey p. 695 

T^ke, Sprague p. 720 

Tjockhart r. Rollins 212, 270 

Lockwood, Bamhart «u 77» 174 



Lock wood r. Lunsford 728 

Locust Mountain Coal Co., Freck v. 126, 


r. Oorrell 685 

LocUh Mine, Irort Mine v. 449 

Loftis, McBee i;. €6, 114, 144, 674 

Logan 17. Driscoll 609 

V. Wasliington County 44, 116 

Lone Dane Lo<le 222, StiS 

Long, Drummond v. 246 

V. Isaksen 202 

, McLean County Coal Co. v. 695 

Looniin, State t\ 768 

Loose V. People 781 

Lord V. Carbon Iron Mfg. Co. 634, 729, 

Lorenz r. Jacob 

, Jacob V. 

V. Waldron 

Louise Mining Co. 
Louisirille Lode Case 
Love, Abel t;. 
Lovelock, Nolan v. 
Lovering, Cooper v. 
Loverock, Dunham v. 
Lowden, Frey v. 
Lowe, Henry v. 
Lower, Armstrong v. 

199, 218, 310, 827, 

Lowery, Weimer w. 663 

Lowry v. Hay 683 

Lucas, Chester Co. v. 39, 125 

Lucerne M. Co.. WeiU v. 299, 346 

Lulay V. Barnes 127, 674 

Lunsford v. LaMotte Lead Co. 71 

, Lockwood u. 728 

L>ell, Burgan r. 762 

Lykens Valley Coal Co. v. Dock 7, 138, 

628, 621) 
Lyman v. Arnold 18:{ 

Lynch's Appeal 715 

Lynch r. Versailles F. Gas Co. 167 

Lynn's Appeal 12 

Lyon, Charles 500 

V. Gormley 6, 187, 597 

V. Miller 102, 701 

, Shoenberger 17. 85 

, Stratton v. 4 

MackeV, Saunders v. 304, .313 

Mackie, S. F. 355, 3G1 

Maeris r. Bicknell 6^15 

Magalia (r. M. Co. v, Ferguson 377 

Maguire v. Howard 072 

, Souter u. 281, 242, 304, 810 

Mahaska County Coal Co., Jones r. 5U3 
Mallett r. Uncle Sam G. & S. M. Co. 292, j 
293, 299, 304, 305, 329, 76.} 
Malone i\ Big Flat Gravel M. Co. 772 
Maloney, Scott v. 414 

Mammoth, Coney v, 405 

Mammoth Blue Grayel Co., Central 
Pac. B. Co. V. 637 

Mammoth M. Co., Condon v. 864, 867 
Maniinutli Vein Cou. Coal Co.'s Ap- 
peal 732 
Man^ranese Co. v. Trotter 69, 581 
Manhattan By. Co., White v. 328 
Manhattan & San Juan S. M. Co. 302 

Manning o. Frazier 
— V. Strehlow 
Mantle v. Noyes 

, Noyes o, 

Manuel,' Lea ry o. 

r. Wul£E 

, Wulff V. 

88, 69, 119 


898, 487, 490 

398, 487, 490, 625 

208. 412 

206, 206, 823, 840 


Manufacturers' Nat. Gas Co., Mc- 
Knight 17. 101, 103 

, Wills V. 112, 169, 163, 164, 105 

Manville r. Parks 759, 760 

Marden, Dodge r. 60(5, 671 

Margaret M. Co., Morrill v. 200, 378, 666 
Marius v, Bicknell 046 

Mark ham, Paire v. 660 

Markle, Ulndson v. 629 

Marks, Steiner v, 107 

Marquart r. Bradford 297 

Marriott, Miner i;. 407 

Marsh v. Holley 20, 746 

^^, Johns V. 380 

Marshall, Blakley v. 14 

, Farrand v. 687 

V. Harney Peak T. M. M. & M. 


V. Mellon 

, Northern Pacific R. Co. v. 

, Wadsworth r. 

220, 204 



277, 314 


Marshall S. M. Co. v. Kirtley 

, United States ». 

Martin, Hunaker v. 

V. State 

Martin White M. Co., Gleeson v. 

233, 2:39, 2a0. ^o ) 
Marvin i'. Brewster Iron M. Co. 41, Ko, 

Maryland Co., Atlantic Co. y. (5' ^7 

Maske, J. 1). Cr.:i 

Musser. 'i lu ker v, 260, 359, 4 ii> 

Massini, Moro v. 7l'-> 

Muiisot 0. Moses AM 

MnstiTson, C. P. 5o7 

Mather r. Trinity Church 701 

Mathews r. People's Nat. Gas Co. 106 
Mattiiicson & Ilegeler Zinc Co. v. La 

Mattingly, Flavin v. 

V. Lewisohn 

Maxwell r. Todd 

Maye r. Yap pen 
Mayer v. Carothers 
May field, Brundy v. 

O'Gorman v. 

Mayger, Kobinson v» 
Mays V. Dwight 
McAfee, Falls v, 
McAllister, Ritchie «. 

184, 585 

277, 81)9 

277, 304, 400, 400. 

781, 788 



McBee r. Loftis 
McHetli, Hetidrix v. 
McBriyer, (iore #». 

McBriUe, Washington i;. 
McBumey v. Berry 
McCabe, Seaiser o. 
McCaffrey, Tinkham v. 
McCahan v. Wharton 
McCaig. Bryan v. 
McCaleb, Oolagah Coal Co. v. 
McCalmoDt Oil Co., Shepherd v. 

66, 114, 144, 574 



McCann, Lake Superior Co. v. 
McCarthy, Eugene 
McCauIey, Huff v. 

p. McKeig 

McCHkrles r. Roberta 
McClay, McCowan o. 
McClintock v. Bryden 

V. Dana 

McCloskey v. Miller 
McClurg, Edwards v. 
McConnell v. Denyer 

, William H. 

McCord 9. Mining Co. 
McConnick v. Baldwin 

— r. Horan 

— V. Sutton 

V, Vames 

McCowan v, McClay 
McCoy, Natoma W. & M. Co. v. 
McCracken r. Gumbert 
McCulloh, Blaen Coal Co. i;. 
McCune, Col v in r. 
McCunniff, Hugunin v, 
McDaniel v. Bell 
McDermott, Houghton v. 
McDonald r. Askew 

381, 632 



378, 644 


274. 395 


32, 79, 



867, 807. 6.-:9 

64, 72 



261, 671 











239, 294, 470 

261, 671 



— V. Bear River & Auburn W. & 
M. Co. 648 

— , Burke v. 219, 226, 897, 465 


220, 222. 

277, 280, 282 

114, 678, G81 




261, 391, 423 


328, 604, fi<)5 

, Hull V. 

V. Montana Wood Co. 

, Trout r. 

McDowell, Baker v, 

1'. Hendrix 

V. Simms 

MfEvoy r. Hyman 
McFerrin, Wade 
McFeters v. Pierson 
MeCJarrity r. Byington 272, 287, 297, 302 
Me(JiIlicu<ldy v. Tompkins 559 

Mc(;itlivray v. Evans 740 

McGinnis v. Ecbert 238, 274, 811, 394 
McGlenn r. Wienbroeer 201, 4SJ 

McGoon r. Ankeny 010 

McGowan v. Alps C. M. Co. 316 

V. Bailey 686, 744 

, Kincaid f. 38 

McGrath v. Bassick 276 

McGregor v. Equitable Gas Co. 192, 686 
McGrew, Chicago, Santa Fe & Cal. 
B. Co. p. 189 

McGuire i\ Wright 
Mcliiiire, Kiisluiinger v, 
-, Hare v. 

, 141 

64, 182 

Mcliityre r. Mclntyr^ Coal Co. 

McKee f*. Brooks 

McKeever, Krandt v. 

McKeig, McCauley v. 

Me Kent! ricks, Hirschler v. 

McKenzie, Barnard o, 

McKeon v. Bit»bee 

McKinley p. Wlieeler 203, 204, 206, 286 

McKiuney, Partridge v. 296, 670 

V. Smith 649 

McKinstry r. Clark 313, 828 
McKnight,4Creutz r. 109, 166, 166 

u. Manufacturars' N. G. Co. 101, 103 

r. Ratcliff * 635 

McLaren u. Byrnes 774 

McLaughlin v. Del Re 610 

, Gatewood v, 341 

, Johnson r. 287, 802 

V, Thompson 219 

V, United States 63:^ 

Mcl^iean County Coal Co. v. Lennon 6^K5 

V, Long 696 

McMaster, Samuel 407 

McMillan, Franklin Coal Co. v. 9, 697 

', John 

V. Philadelphia Co. 

McNeil V. Pace 
McNider, Bonesell v. 
McNish V. Stone 
McNulty, Richardson v. 

, Wenner u. 

, Wiseman v. 

McPhee, Conner tr. 
McShaffery, Castor v, 
McSbane v. Carter 
I'. Kenkle 



279, 315 



297, 336. 312 


302, 755 






McTarnahan v. Pike 
Mc Williaros v. Green River C. A. 560, ^iS\ 
Meacham r. Boydston 137 

Meagher, Belk v. 197, 268, 27»». 304. 308. 

314, 321, :;2J) 

V. I\eed 7(»0 


238, 200 



143, 173 

r.43, 745 

Mechlinp. C'ollina v. 
Meister, Donahue v. 
Meistrell r. Reach 
Mellon, Mnrshall v. 

, Kiddle r. 

Melton /•. Lnmbnrd 

Merced M. Co., Boggs v. m), l^'o. -121 

V. Fremont 824, 335. 721, 724 

Mercur r. State Line & Sullivan li. 

Merideth, Randall v. 
Merrill v. Dixon 
Merritt v. Judd 
Metcalf V. Prescott 
Meyendorf v. Frohner 
Meyer t\ Hyman 
Meyers »•. Farquharson 
Miami Coal Co. v. Wigton 




246, 248, 251 

313, 428 




Michigan L. & I. Co., Deer Lake Co. v, 131 



Michigan L. & I. Co., Erickson v. 680, 679 
Mickle u, Douglas 151, t>79 

Middlesex M. Co., Morgenson t^. 476 

MiddletOD, Taylor v. 231 

Midland Blast Furnace Co., Clark v. 94 
Migeon, Moutana Central H. Co. v. 490 
Mike & Starr M. Co., Iron SiWer M. 

Co. i;. 411, 466, 480 

Miles r. Delaware & Hudson Canal 

Miller v. Butterfield 

V. Chester Slate Ca 

^^ u Cumberland Cotton Factory 

— , Fisliback v. 

— ' V. Girard • 

, Hartford Co. v, 

, Levaroni c. 

, Lyon V. 

, McCloskey v, 

, Moore v. 

• V. Taylor 

Millett i;. People 

Milligan i;. Savery 

Milliken, F slier o. 

MiUs r. Fletcher 

— — , Steele v. 

Milton V. Lamb 

Minibres M. Co. 

Minah Con. M. Co., Pelton v. 


102, 701 


£2, 68, 143 

226, 337 


867, 869 

Mine Hill & S. H. R. Co. v. lippin- 
cott 190, 681 

Miner, Abraham L. 

— V. Marriott 

Mineral Claimants, Lead City Town 

site V. 
Miners' Ditch Co., Tenny v. 
Mining Co., Capner r. 
, Gaines v. 

V. Leport 

-, McCord V. 








201, 481 

Montana Company 
V. Clark 

Minnekahta Stone Mine 

Minnesota M. Co., National Copper 

Co. V. 634 

Mint L. & M. Site 609 

Mission Transfer Co., Dietz r. 124, 1'28, 

Missouri Iron Co., Haensler v. 21 

Mitchell. Bannon v, 6;';^ 

V. Brown 656 

V. Cline 211, 260, 426 

, James 222 

, Palrnour v, 623 

p. Rome 677 

Mix, Duffy V. 318, 331, 338 

Moinjiona Coal Co., Livingston v. 679 
Mongrain r. Northern Pacific R. Co. 610 
Monitor Lode 409 

Mono, Shoo Fly r. 404 

Monroe Lode 409, 492 

Mont Blanc Con. Gravel M. Co. t;. 

DeBour 893 

Montague, Clifton v, 100 

Montana v. Buley 631 

Montana Centml B. Co. i^. Migeon 490 

441, 448, 466, 
693, 72a 
Montana Copper Co. v. Dabl 489, 491 

, Dahl V. 489, 491 

Montana M. Co. v. St. Louis M. & M. 
Co. 740, 742 

, St. Louis M. & M. Co. v. 728, 740, 742 

MonUna M. L. & M. Co., Carrhart v. 328 
Montana Ry. Ca o. Warren 188, 190 

Montana Union Ry. Co., Butte, Ana- 
conda & Pacific R. Co. v. 602 
Montana Wood Co., McDonald v, 220, 

222, 277. 480, 482 
Montgomery o. Wilson Creek M. & 

M. Co. 
Montooth V. Gamble 
Moody V. Alexander 
Moore i;. Brown 

17. Ferrell 

— V. Hamerstag 

^v. Miller 

V. Rollins 

V. Smaw 

, State u, 

V, Wilkinson 

More V. Massini 
Morehead, Conrad v. 
Moreland v. Frick Coke Co. 
Morenhaut v. Wilson 

Morgan, Butte T. M. Co. v, 

, Krause v. 

, Rockwell V. 

Morganstern v. Thrift 
Morgenson v. Middlesex M. Co. 

487, 404 

42, 46, 48, 129 





62, 68, 148 


178, 194 




102, 163, 164 


198, 297, 803 


Moriarty, Gelcich v. 196, 230, 326 

Moritz V. Lavelle 211 

Morning Star M. Co., Victor M. Co. r . 687 
Morrill v. Margaret M. Co. 200, 378, 666 
Morris, Brown v, 6 

, Doherty u. 276, 312, 895 

, Johnston v. 629 

V. W. & R. R. T. P. R. Co. 189 

Morrison, DeNoon v. 273 

. Williams v. 68 

Morse r. DeArdo 773 

Morton v. Nebraska 195, 417, 641, 664. 


I'. Solambo Copper M. Co. 211, 288 

Moses, Coal Creek M. & Mf^:. Co. r, 708 

, Hungarian Hill Gravel M. Co. v. 6()8 

, Massot V. 49 

Mosley, William H. 667 

Mo83. Davis v. 107, 120, 166, 160, &ts3 
Moss Rose Lode 876 

Mount Auburn G. Q. M. Co., Hol- 
land r. 2:>0 
Mount Diablo M. & M. Co. t*. Callison 236, 

267, 284, 301, 448 
Mount Lookout C. Co., Shoemaker t\ 122 
Mount Pleasant Mine 404 

Mountain Maid 435 

Mountain Tiger et aL Lodes 402 

Mountaineer G. M. Ca, Williams v, 778 



Mozoo p. Wilkinaon 276, 896, 479 

Mojrers r. TUej 114, 166 

, Tiley v. 121. 126, 146, 166 

Muddy Valley li. ft M. Co. v. Phil- 

Ups 788 

Madsill M. Co. v. Watrow 708 

Mahlenberg, Dandas v. 701 

V. Henning 96, 98 

Muir, Bewick v. 772 

, Victor Coal Co. p. 786 

Maldoon, Pharis r. 278 

Malhera, Lehigh Valley Coal Co. v. 792 







103, 189 



718, 732, 788 


310, &S7 

Malhollan, Shoenberger v. 
MalUn V. United States 

^ United States «. 

Mulligan v. Hansen 

MolTane, D. A. & G. W. 

MolTerhiU, Boucher v. 

Manhall, Smith v. 

Munn 9. Stone 

Manroe v. Armstrong^ 

Manson i*. Tryon 

Morley v, Ennis 

Murphy v. Cobb 

Marphy't Flat F. Co., Union Water 

Co. V. 668 

Marray, Block v. 776 

, Blue Bird M. Co. 9. 466, 699, 742 

p. Butte 399, 622 

r. HaTerty 21 

, Hobart v. 40, 61 

, Pardee v. 466, 476, 671 

, ReiDj 9. 214, 222» 234, 479 

Martland v. Callihan 747 
MmgroYe, Rioo R. & M. Co. 9. 778 
Myera, HukiU 9. 169 
9. Spooner 268 

Navtahaijl M. & T. Co., Thomas 9. 723, 

Mapier v. Bui winkle 677 

Nash, NisbeC 9. 768 

Narional Copper Ca v. Minnesota M. 

Co. 634 

National M. & E. Co. 606 

National M. Co., Foote 9. 219, 268, 466 
National Transit Co., Enterprise O. & 

G. Co. 9. 29 

9. Weston 702 

Natoma Water Co., Broder 9. 661 

, Hancock 9. 664 

, Kelly 9. 644 

, McCoy 9. 660 

Nebraska, Mortso r. 196, 417, 641, 664, 

Nebraska & C. Stone Co., Cheeney v. 698 
Neel r. Neel 12. 604 

, PennsyWania Salt Co. v, 17, 46 

Neeld's Road 606 

r. Barber Asphalt Paring Co. 71 

Nelson v. Hoch 681 

9. O'Neal 611, 623 

, United States 9. 602 

Nelson Mining Co., Ison si. 643 

Nerce Valle 647 

Nesbit 9. Godfrey 143 

Nessler v, Bigelow 670 

Nethery 9. Payne 727 

Nettie Lode v. Texas Lode 413 

Nenbaumer 9. Woodman 827 

Neumoyer v. Andreas 73 

Nevada C. & S. C. Co. 9. Kidd 662 

Nevada, Keystone L. & M. Site 9. 632 
Nevada Lode 414 

Nevada Reservoir Ditch 9. Blue Point 

Placer 406 

Nevada Water Co. 9. Powell 661 

Neville, Ferguson 9. 206 

New Boston C. & M. Co. 9. Pottsville 

Water Co. 624 

New Jersey Zinc & Iron Co., Lehigh 

Zinc & Iron Co. v. 132 

New York & East Tenne s s ee Iron Co. 

V, Stephens 107 

New York Hill Co. v. Rocky Bar Co. 374, 

New York & Last Chance M. Ca, 

Del Monte M. & M. Co. 9. 460 

New York L. & M. Claim 607 

New York M. Co., Bear River & Au- 
burn Water Co. v, 620, 646 
Newark Coal Co. 9. Upson 44 
Newberg Oriel C. & C. Co., Graham v. 793 

280, 287 
196, 683, 670 


391, 398 

Negley, Boyd 9. 
Hegos, James D. 
NeiU r. Shamteiv 


Kewbill V. Thurston 
Newhouse, Franooear 9. 
Newman v. Barnes 
, E. 8. 

, Hill 9. 

Newport Lode 
Newton, Thompson si. 
Nichols v^ Becker 

, Lipscomb 9. 

-^, Wolverton r. 

Nigger Hill Con. M. Co., Grosfleld r. 493 
NilDesperaiidum Placer 362, 366 

Nisbet V. Nash 768 

Noble V. Sylvester 7 

Nolan V. Lovelock 762 

Noonan v. Caledonia G. M. Co. 616, 646 

, Caledonia G. M. Co. »». 646 

North American M. Co., Smith r. 29o 
North Bloomfleld Gravel M. Co.. Tnre 619 

. Woodruff v. 286, 616, 619 

Nortii I^adville t\ Searl 370 

North Noonday M. Co. v. Orient M. 
Co. 203, 204, 216. 229, 231 , 240, 244. 

268, 286, 808, 320, 449 
North Pennsylvania Coal Co. 9. Snow- 
den 19, 746 
North Star M. Co., Carson City G. & 
S. M. Co. P. 869, 462 

V. Central Pac. R. Co. 638 

Northern C. & I. Co., Algonquin Coal 
Co. 9. 



Northern Pacific Coal Co. 557 

Northern Pacific R. Co. 538 

, Barden v. 583, 534, 539 

V. Cannon 847, 425, 434, 634 

, Casey u. 539 

, Champion Con. M. Co. v. 539 

V. Collins 586, 559 

— , Dobler v. 381 

V. Lewis 604 

1;. Marshall 381 

, Mongrain v, 510 

V. Sanders 5^54 

, Sweeney v. 862, 381 

, Wilkinson v, 536 

, Winscotto. 381,639 

Northumberland Coantj r. Zimmer- 
man 783 
Northwestern C. & I. Co., Stewart v. 145, 


Northwestern Lode & Mill Site 410 

Norton, Kneeland v. 

V. Snyder 

Noteware v. Stems 
Noyes v. Black 
— ', Hopkins v, 

V. Mantle 

, Mantle v. 

, Porter v. 

Noyes Placer, Railroad Lode v. 






896, 487, 490, 525 

898, 487, 490 










220, 288, 248, 260 

44, 121, 680 





102, 103 

Oak Ridob Co. v. Rogers 
O'Brien, Franklin M. Co. v. 
Occidental, Sutro Tunnel ». 
Occidental M. & M. Co., Skyrme ». 
O'Connor v. Irvine 

, Ouimette v. 

O'Donnell v. Brehen 

V. Glenn 

Offerman v. Starr 

Ogden V. Hatry 

Ogle, Illinois Coal Co. v 

O'Gorman v. Mayfleld 

O'Hara, Smith v. 

O'Hem. Wateon v. « „ 

Oil Creek & Allegheny R. Co., Has- 

son V. ^ 

Oil Well Supply Co., Aderhold v, 140 
O'Keiffe v, Cunningham 609 

Olathe Placer 869,481,492 

Olathe Placer Mine 493 

Old Missouri, Horrid v. 369, 402 

Old Telegraph M. Co. v. Central 
Smelting Co. ^ J86 

, Kahn V. 233, 429, 469, 736, 747 

Older, Vervalen v. 18 

Oliver, Chicago Quartz M. Co. v. 6-^6 
— , Gibson i;. 

V. Goetz 

, T^atherman v. 

Omaha & Grant S. & R. Co. v. Tabor 20, 

69, 695, 746 
Omaha Quartz Lode 305, 404 

Omar v. Soper 226» 299, 812, 339, 344 

O'Nenl, Nolson v. 611, 623 

Ontario Iron (>>, Gilmore r. 109 

OolaKali C(»al Co. r. McOileb 723 

Ophir 8. M. Co. r. Carpenter 666, (w»7 
Oram's Estate 121 

Ore Knob Copper Co., Adams v. 87, 150 
Oreamuna t\ Uncle Sam G. & S. M. 

Co. 293, 299, 805 

Oregon Co., Live Ynnke<» Co. r. 201 

Oregon & California H. Co., Bybee r. f562 
O'Reilly v. Camplw-ll 204, 205 

Orient M. Co , North Noonday M. 

Co. V. 203, 204, 216. 229, 231. 240. 

244, 268. 286, 808, 320, 44» 

Orient, etc. Tunnel l^des 355 

Original Co. v. Winlhrop M. Co. 272,290 

Ormsby Coal Co., Bestwick v. 178, 680. 

Oro Placer Claim 870 

Orr V. Haskell 292 

Ortman >\ Dixon 647,607 

Osage Coal M. Co., Spiva r. 790 

Osborne, Butler Savings Bank v. 765 
Oscamp v. Crystal River M. Co. 27 1» 

Osgood P. El Dorado W. & D. G. M. 

Co. 653, 671 

Oskaloosa College r. Western Union 

Fuel Co. 125, 696^ 

Ouimette v. O'Connor 561 

Outley, Gartside v. - 51 

Oveus V. Stephens 407 

Overman v. Dardanelles 402 

Overman S. M. Co. v\ American M. 

Co. 25S 

V. Corcoran 221, 594 

Owen, West v. 86» 

Owens, Pennsylvania M. Co. v. 385 

O wings V. Emery 16 

Pace. McNeil r. 270.315 

Pacific Coast M. & M. Co, v, Spar^o 422 
Pacific G. & S. M. Co., Pralus r. 297, 308. 


Pacific Slope Lode 
Page, A. B. 

V. Parker 

V. Summers 

Pagosa Springs 
Paire v. Markham 
Palmer r. Truby 
V. Uncas M. Co. 

481, 525 


158, 161, 702 


I^almour v. Mitchell 

Pancoast Coal Co., Winton Coal Co. r. 29 

Pardee, Hill v. ««5 

I'. Murray 466, 476, 57 1 

Park Co. v. Cummings 145, 586 

Parke v. Kilham 645, 662 

Parker, Chamberlain v. 110 

, Hand Gold M. Co. v. (\m 

, Page V. 713 

V. Parker 781, 7r>8 

Parker's Adm'rs, Barksdale v, 60 



Parks V. Hendsch 201 

. MaDTille o. 759, 7tf() 

, People V. 633 

, Proiser p. 262, 288 

, Redfield r. 671, 672 

Parks Canal & M. Co. v. Hoyt 663 

Parley's Park S. M. Co. v. Kerr 257, 286 






210, 891, 409, 570 




751, 760 

471, 472, 476 







278, 298 

Parole, Ground Hog Lode v, 

Parrott, United States v. 

Parsons r. Ellis 

Partridge v. McKinney 

Patchen r. Keeley 

Patchin, Hont r. 

Patrick V. Bowman 

, Bowman o. 

, Rhoadea c. 

— ^ V. Weston 

Patten Extension Lode 

Patterson v. Hitchcock 

F. Keystone M. Co. 

p. Tarbell 

Patton V. Axlej 

Payne, Netheiy v. 

Pearce, Deslose v. 
Peard, lYeyaskiB v. 

Peame r. Coal Creek Coal Co. 185, 589 
Pearsall & Freeman 261, 855, 481 

Pederson Lode v. Black Hawk Town- 
site 375, 525 
Peel Splint Coal Co., State v. « 771 
Peeples, I>eonard p. 709 
Peers r. Consolidated Coal Co. of St 
Louis 187 

. Consolidated Coal Co. of St. 

' Loois p. 88, 119, 187 

PeiraDo v. Pendola 879 

Pelican & Dires M. Co. p. Snodgrass 

219, 274, 811 
Pell, Corning Tonnel Co. p. 498, 600, 601, 

Pelton p. Minah Con. M. Co. 776 

Pemberton, Camthers p. 655 

Pendery, CroMman p. 217, 821 

Pendill p. EeUs 146 

Pendola, Peirano p. 879 

Penn p. Taylor 678 

Penn Gas Coal Co. p. Versailles Fuel 
Gas Co. 191,684 

Pennsylrania Coal Co. p. Sanderson 626, 

628, 629, 686 

p. Winchester 1 82 

Pennsylvania M. Co. v. Owens 3.35 

PennsyKania Salt Co. p. Neel 17. 45 

People, BrAceyille Coal Co. v. 7M8 

r. District Court 897, 593 

1». Eldredge 190 

, Frorer i*. 767 

— c. Gold Run D. & M. Co. 621 

, Harding p. 768 

, Jones p. 767 ' 

— , Loose p. 781 
, MiUett p. 767 

— V. Parks 633 
• — t Bunsey ». 767 

People, Reinecke p. 767 

, Sholl r. 7bl 

c. Williams 6 

People t'x rtl. Wolpert p. Rogers 62'J 

People's Gaa Co. r. Tyner 'A\. 

People's Nat. Gas Co. Afathews p. 1G6 
Pepper, Hawkins v. 154 

Perasich, Slavonian M. Co. p. 268, oO.) 
Perego v. Dodge 866, 3'.K) 

Pereira c. Jacks 632 

Periepi r. Frankenfield 77i> 

Perkins, Hodgson p. 73, 177 

V.Rice 711 

Pershhaker, Gregory p. 214, 218, 288, 24 1 , 

47d, &iO 
Persons, Linton C. & M. Ca v. 
Peru Iron Co., Livingston v. 
Peru L. & M. Site 
Peters, Cummings p. 

p. Philipps 

Peterson, Aaolph 
. Atchison p. 

615, 642, 721 

, Brown p. 696 

, Chicago, Wilmington, & V. C. 

Co. p. 788 

, Kier p. 17, 32, i:J3 

Petit p. Buffalo Co. 410 

Petroleum Co. p. Coal, Coke 4b I>Ifg. 
Co. 108, 148, 167 




Gale p. 
p. Transportation Co. 

Pettibone p. Smith 

Pettingill, Smith p. 

Pew, Cochran p. 

Pfeiffer v. Brown 

Pilaris p. Muldoon 

Phelps V. ChesBon 

Philadelphia Co., McMillan v, 

PhiUdelphia & Reading Coal Co. p. 

Taylor 636 

Philipps, Peters v. 106, 680 

Phillips. Bartley p. 166, 176 

V. Coast 702 

, Irwin p. 644 

, Muddy Valley M. & M. Co. r. 788 

, Scranton p. 42, 681 

r. Vandergrift 164 

V, Watson 593 

Phillpotts p. Blasdel 238, 846 

Phoenix Water Co. p. Fletcher 649 

Pierce, Sparks p. 322, 423, 617 

, Stinchfield p. 381 

p. Tidwell 123 

, Yoiiglnogheny River Coal Co. v. 73 

Pierson. McFeters v. 
Pike, McTarnahan p. 
Pike's Peak Lode 
Piru Oil Co. 
Piatt, Farnum p. 
Plested, Van Doren p. 
Plevna Lode 
Plowman, Ralston p. 
Plum, Gaston p. 
, Hart p. 

328, 604, 695 


481, 436. 484, 408 


83, 84, 686 

201, 4ft2 

367, 471 

291, 610 








166, 786 

166, 786 





Plummer v. Hillside C. & L Co. 48, 77. 

175, 674 
Plymoutli Lode 436, 624 

Plymouth Co. v. Kommiekey 76W 

Pocotilio S. M. Co., Brandow t;. 346 

Poire r. Wells 261,426,621 

Polk's Lessee v. Wendell 421 

Pollard V. Slilvely 231, 242, 246, 3l0 

Poineroy v. Salt Co. 686 

Pomeroy Coal Co., Williams t?. 686, 700 
Pond M. Co., Real Del Monte M. 

Co. V. 
Poplar Creek Coo. Quartz Mine 
Porter, Friend v. 
— V. Noyes 
Poterie v. Poterie Gas Co. 
Poterie Gas Co. v, Poterie 
Potosi Co., Biodgett v. 
Potter, Etting v. 
Potts, Garman v. 
Pottsville Water Co., New Bostoo C. 

& M. Co. V. 
PovQAde V. Uyan 289, 242, 204 

Powell V. Bourrought 109 

— — c. Ferguson 414 

V. Lantzy 49 

, Nevada Water Co. v, 661 

Pralus V. Jefferson G. & S. M. Co. 280, 826 

V. Paeiac G. & S. M. Co. 297, 80S, 336 

Pratt p. Avery 366 

Prescott, Metcalf v. 246, 248, 261 

Preston, Bracken v. 737 

r. Hunter 241, 251 

Prevost V. Gorrell 682 
Price, Johnston v. 747 
, Wyoming Coal & Transportation 

Co.v, 182 

Pride of the West Mine 406 

Priddy I'. Griffith 

Primeaux, Abbott v, 388 

Prince of Wales 862, 869. 373 

Princeton M. Co. v. First National Bank 


Pringle v. Vesta Coal Co. 686 

Proctor V. Jennings 667 

Proprietors of Ore Bed, Busfanell r. 622 
Prospect M. Co., Jones v. 44.3, 4()8 

Prosper t- . Parks 262, 288 

Protector Lode 436, 626 

Providence Trustees, Appeal of 17 

PuKh, Becker r. 282, 258, 290, 894 

l*uryenr, Crouch v. 16 

Putnam, Green v. 680 

— . Settenibre v. 766 

18, 778 


QiTARRY Co., Trust Co. v. 
Quartette M. Co., Kannaugh v. 
Quicksilver M. Co., Santa Clara M. 

Assn. r. 422. 764 

Quigley v. Oillett 273, 394 

Quimby v. Boyd 246, 274 

Quinn v. Quinn 758 

Quirk r. Falk 



240, 284, 820, 


Rablin, William 

liader r. Allen 

Kadford Iron Co., Cowan v. 60, 

Kaff, Illinois S. M. & M. Co. v. 

Hailroud Lode v. Noyes Placer 

Uuiney v. Fricke Coke Co. 

Kalston v. Plowman 291, 

Karoelli v. Irish 

Ramsay v. Chandler 

Ramsey v. People 

Randall v. Merideth 

, Saterfleld v, 

Randlett, Ktcg v. 

Randolph v. Halden 

Rankin s Appeal 

Rankin, Campbell v. 

— , James D. 

— , Silva V. 

Rara Avis G. & S. M. Co. v. Bouscher 

Ratcliff, McKnight v, 

Raunhcim v, Dahl 898, 488, 

, Dahl V. 896» 424, 488, 

Ray, Broad v. 

— r. Hodge 

V, West Pennsylvamia N. G. Co. 

168, 164, 
Raynolds v, Hanna 
Rea u. Stephenson 
Reach, Meistrell v. 
Reading ^ PotUville R. Co. v. Bal- 

Real Del Monte M. Co. v. Pond Bf. Co. 
Rebel Lode 

Red Clo^d Con. M. Co., Tredinnick v\ 
Red Pine Mine 

Redfleld r. Parks 671, 

Redstone Co. v. Roby 
Heed's Ap|>eal 
Reed v. Beck 107, 

, Hail I'. 

, Meagher v. 

V. Reed 

V. Spicer . 668, 

— , United States v. 

Reeding, Ilirbour t;. 212, 

Rehm, Bradstreet v. 

Rcinecke v. People 

Reininghaus, Cutting f. 

Reins r. Murray 214, 222, 234, 

Reliance Coal Co. r. Kentucky Coal 

Remington r. Bandit 
Rend r. Venture Oil Co. • 

Reiidall, Evans v, 
Renshaw r. Switzer 
Republic Iron Works v. Burgwin 
Rerick v, Kern 

Resumption M. & S. Co.. Gardner v. 
Reymcrt, West Point Iron Co. «. 
Heynolds, Commonwealth v. 
I'. Cook 

— V. Hosmor 

V. Iron Silver M. Co. 8$1, 388, 














Bejnolds, Iron Silver M. Co. o. 



Rhea v. Tatbem 


». Vaonoy 


KIxMdes 0. Patrick 


Bhodeev. Treat 


Bice, J. B. 


. Perkins r. 


Bich HUl Coal M. Co., VbQ V. 


— , Leslie v. 


Bichard 9 Wolfling 

278. 648 

Bichards v. Dower 896, 619, 620, 726 

, Dower o. % 619,620 

^.Little SchujOdB N. B. & C. 

Co. r. 626 

Bicliardsan v. Kier 666 

9. McNulty 297, 886, 342 

— -, Smith 9. 786 

Bichmond, Commonwealth v. 788 

Kiclimond Iron Works, Arnold 9. 697 
Bichmoiid M. Co., Eureka Con. M. 

Co. r. 417, 488, 446, 448, 460, 478 

r. Rose 267, 268, 890, 400, 497 

, Rose V. 814, 890, 400 

, United Sutes r. 608 

Bickard, Jennings v. 709 

Bioo Aspen Con. M. Co., Enterprise 

M. Ca V. 897, 496, 497 


Bioo R. A M. Co. v. MosgraTe 

Bieo Townslte 

Riddle 9. Mellon 

Ridelvperger, Cryan 0. 

Bidge Cu., Antoine Co. v. 

Ridgel J V. Conewago boo Co. 

Righter v. Hamilton 

Bipley, Rntland Marble Col v. 

Bisher, Hays v, 

Ritchie v. McAllister 

Bitter, Clark o. 

Bivers v. Barbank 

Biaor, Hindman 9. 

Boach, Bartlett C.&L Go. ». 

— 9. Gray 
Bobbins, Tipping e. 
Roberts, Cooper v. 
— , Honor v. 

— r. Jepson 
— , Lakin v. 
-— , McCharles v. 

— 9. Wilson 
Robertson, UargroTe v. 
— , Jones 9. 

— 9. Smith 


148, 178 






80, 74, 141 



688, 695 
189, 292, »2» 

— 9. Yooghioffheny R. C. Co. 686 

Robinson 0. Coal Co. 621 

, Fritaler w. 92 

— , Johnstone «. 209 

, Lawrence a. 769 

V. M;iyger 406 

r. Roydor 406, 492 

r. Troop M. Co. 72 

Bsbj, Jackson 9. 269, 889 

— , Redstone Co. v, 791 

Rockafellow v. HanorerCoal Co. 688, 588 
Rockwell 9. Graham 894, 666 

9, Morgan 10 

Rocky Bar Co., New York Hill Co. t;. 874, 

Rocky Branch C. Ca, Beatie v, 94 

Rocky Lode 876 

Rodgers, Lincoln p. 611 

Rogers 9. Cooney 288, 821, 830, 61 L 

— , Downey o. 407 

, Oak Ridge Co. v, 702 

— , People ex reL Wolpert 1^. 622 

, Samuel K 261. 860 

9, Suggs 

Rollins, Lockhart P. 
— — , Moore 9. 
Rome, Mitchell o. 
— ^, Smith 9. 
Ro«»8evelt 9. Dale 
— , Dale 9, 
Rorer Iron Co. v. front 
Rose v. Richmond M. Co. 
— — . Richmond M. Co. 


Rose Lode Claims 
Rosenthal v. Ives 
Rosenzweig, Duffield v. 

196. 599 

212, 276 







314, 390, 4U0 

257, 268, 890, 

4()(). 497 

241, 856. :368 

291, 897. 479 

82, 702 

Roseville Alta M. Co. 9. Iowa Gulch 

M. Co. 
Ross, Derry 9. 
^-» 9. Heathcock 
— ', Jerome 9. 

9. Scott 

Rounsley 9. Jones 
Rowan v. Satter6eld 
Rowen, Caledonia M. Co. v* 
Rowena Lode 
Royal K. Platter 
Roydor, Robinson 9. 
Rucker, Aspen M. & S. Ca v. 

— 9. Knisley 
Ruiz, Horsewell 9. 
Rumsey, United States 9. 
Runk, Foster 9, 
Hupley 9. Welch 
Rush 9. French 210» 286^ 80^ 824, 8:U, 

Russell, Balfour 9, 

— 9. Chumasero 
— — , Comefrys 9, 

, Commonwealth v. 

, Gnnn 9. 

Rutland Marble Co. v, Bipley 
Ryan, Harvey 9. 
-^— , Poujade r. 

. Strang 9. 




728, 780, 786 












196. i\49 

Ryekman v. Gillis 

Rynd 9, Rynd Farm Oil Co. 

613, 629 
276, 318 
239, 242, 294 

0O8, oOil 


Sallt 9. Berwind- White C. M. Co. 770 

Salt Blnff Placer 666 

Salt Co. 9. Brown 698 

— ^, Pomeroy 9. 680 



Sanders, Northern Pacific R. Co. v, 5S4 

V. Sharp Itto 

Sanderson, Delaware, Lackawanna & 

Wehtern H. I'o. 9. 40, 116 

, Penu8>lvaiua Coal Co. v, 626, 6.'», 

029, 08(S 

V. Scranton 42, 45, 46, 77, 115 

Sandoval C. & M. Co., Ewing v. 57i) 

San FeUi)e M. Co v, BeUhaw 343 

Sail Francirti'o, Trenouth o. 821 

Sangamon C. M. Co. u, Wiggerhaua 7b2 
Sanger, lioe v. 4tiH 

San Juan 8. M. Ca, Kendall r. 545 

Santa Clara M. Aaa'n r. Quicksilver 

M. Co. 42-2, 764 

Saterfield v. Randall 67 1 

'Sutijsfaction Extension Mill Site 60U 

Satterfieid v. Rowan 623 

Saunders p. Mackejr 304, 313 

Savage v. Boynton 87U 

Savage C. S. M. Co., Hnnfer v. 777 

Savage M. Co., Tliomburgh v, 740 

Savage Silver M. Co., Chase v. 212 

Savery, Milligan v. 829, 898 

Sawyer, Turner v. 271, 892, 409, 425 

SUyers r. Hoskinfion 13 

Scliaefer, Consolidated Coal Co. v. 1 18, 

Schanpp r. Hukill 168 

Scheller, Consolidated Coal Co. of St. 

Louis r. 788 

Soheurman, Giroux v. 414 

Schmi^seur, Consolidated Coal Co. of 

St. r^uis r. 580 

Schmoele, Schuylkill & Dauphin Imp. 

& R. Co. r. 147 

Schultz r. Bower 687 

Schuylkill & Dauphin Imp. & R. Co. 

V. Schmoele 


Scott, Kenible C. 4b L Co. v. 


— V. Maloney 



— i;. Sheldon 


, Waterhoune «. 


Scranton v, Gilbert 


r. Phillips 


42,45,46,77, 116 

Seager r. McCabe 


Seals, Fremont v. 


Searl, North I^adville v. 376 

Searle v. Lackawanna & Bloomsbury 

R. R. Co. 190, 191 

Searle Placer 361, 381, 481 

Sears, Becker t;. 406, 402 

, J. P. 279, 361 

Seaton M. Co. v. Davis 360 

Seawell, Dayton G. ft S. M. Co. v. 693. 

212, 242, 264, 275. 
Seven Tfiirty Lode 372 

Seidler v, Lafave 
Senator Mill Site 
Sectembre v. Putnam 
Settle, Kramer v. 

Sever r. Gregovich 

207, 314 

Severance, Whitenian 



Seymour, Bowyeri;. 


232, 253, 890, 427 

p. Wood 


ShafVr v. i 'onstans 


Shainline*B Appeal 


Shaniburg, Neill v. 


Shannon, Michael 


Sharpe, Sanders v. 


Shaw r. Wallace 

16. 40, 62, 699 

Sheafer, First National Bank v. 142 


Sheaffer r. Stieaffer 


Sheets r. Allen 


Sheffield & B. C. I. & R. Co 

., Central 

Trust Co. V. 


Sheldon r. Davey 


, Scott 0. 


Shellar v. Shivers 


Shenango N. G. Co., 

atiieni' N. G. 

Co. r. 


Shepherd r. BirA 


V. McCalmimt Oil Co. 

82, 70, 152 

Sherer, George H. 


Sherman M. Co , Smith v. 


Shively, Pollard r. 

281, 242, 246, 310 

Shivem, Shellar v. 


Slioeniaker*s Appeal 
Shot>mnker v. Hatch 



i;. Mount Lookout Coal Co. 122 

r. United States 


Shoenberger v. Lyon 


— -^ r. Mulhollan 


Sholl V, German Coal Ca 

145, 686^ 593 

r. People 


Sh<»nbar Lode 


Shoo Flv V. Mono 


Short, Williams v. 


Shortt, Heints v. 


^hreeve, Cheesman v. 


Shreve, Cheesman r. 

466, 693 

r. Copper Bell M. Co. 220, 282, 845 

Shull V. Fontanet M. Co. 774 

Shurtz, United States p. 375 

Sides Silver M. Co., Harvey v. 611 

Sierra Buttes G. M. Co., Lakin v. 271, 

Sierra Grande M. Co. v. Crawford 606 
Sierra Nevada Con. M. Co., Back v. 397, 


, Gilpin V. 466, 728 

Slgafus, Solitaire Co. v. 411 

Sillingford v. Good 121 

Silsby V, Trotter 58, 60, 581 

Silva u. Rankin . 728 

, Sontliern Development Co. r. 706 

Silver Cliflf v. Colorado 531 

Silver Jennie Lode 863 

Silver King Lode 418 

Silver King M. Co. 868 

Silver King Quartz Mine 367 

Silver M. Co. v. Fall 742 

Silver Queen Lode 472 



Silretter 9. Coe Qaartz M. Co. 


, Wilhelni 17. 

472. 474 

Simmons, W. A. 

87 0, 624 

, Wimor D. 068, 

, 569, r»7 i 

Simiii*. McDowell v. 


Siino»on, Waddell 0, 


Sinifition, Anderson v. 


, (^iker V. 

645. 725 

. Eddy P. 

644, 670 

Siiiu r. Smith 


Skirlilon, Beard 9. 


Skillicom. Bell v. 


Skiltnian, Lachman 


Skyrme v. OccidenUl M. & M. Co. 777 

SUter V. Haas 


SUuvm, Bjrne v. 234 

, 868, 414 

SltToiiian M. Co. 0. Perasich 

268, 300 

Slide f^ode. Corning Tunnel t*. 


Sloan V. Furnace Co. 


Snmllhouse 9. Kentucky & Montana 

G. & S. M. Co. 


Smair, Moore r. 

178. 194 

Smelting Co^ Steel v. 421, 428, 514/ 519. 


Smick, Kenrick v. 

160, 161 

Smith. A. P. 


— , Avery r. 


— r. Buckley 


, Rardge p. 


-^, Cooant 9, 


r. Cooley 66. 749, 758' 

P. I>oe 190 

, 198, 335 

, Findlay v. 

16, 60.-» 

. George IL 


, Golden Term IL Go. ». 

210, 546 

— r. Halloway 


^— , Hsnman v. 


p. Hill 


. Hill p. 


— -. Hoy p. 


— -, Kitchen p. 

76, 133 

— , Lewis 


, McKinney r. 


V. Mqnhall 

108, 139 

— r. North American Bl Co. 


V. O'Hara 


^— , Pettibone p. 


p. Pettlngill 


— ' p. Richandson 


» RobertM>n p. 189, 292, 3*28 

p. Rome 

184, 727 

V. Sherman M. Co. 


, Sims p. 


r. Sute 


. Taylor p. 


, United SUtea p. 


, Wheeler p. 199, 202, 867, 418, 480, 


. Wilson p. 


— -. Wimer p. 


Smoke House Lode 


Smnggler M. Co. v. Tmeworthy Lode 



Snell w LeTiU 


Snoll V. Wasatch & Jordan VaDey R. 

Co. 683, 691 

Snuddy p. Bolen 84, 185 

Snodgrass, Pelican & Dives M. Co. v. 219, 

274, 81 1 
Snow Flake Lode 360, 430 

Snowden, North Pennsylvania Coal 

Co. p. 19, 746 

Snyder v. Bumham 762 

, Norton p. 84 

Sobey r. Thomaa 127 

Soggs, Rogers p. 196, 577 

Sohn, Warren p. 774 

Solambo Copper M. Co., Morton p. 211. 

Solary, Brown p. 727 

Sold Again Fraction M. Lode 875 

Solitaire Co. p. Sigafus 411 

Siilliday p. Johnson 182 

Soper, Omar p. 226, 299, 312, 339, 344 
Souter t>, Maguire 231, 242, 804, 810 

South Carolina, Coosaw M. Co. p. 180, 

South Dakota, Johnson p. 660 

p. Vermont Stone Co. 201, 532 

South End M. Co. p. Tinney 814,428, 572 
South Pennsylvania Oil Co., Fleming 

O. & O. Co. p. 112 

South Spring Hill G. M. Co., Amador 

Medeiin 0. M. Co. v. ' 466, 642 

South Star Lode 484, 494 

South West Pennsylvania Pipe Lines, 

(tiffin p. 703 

Southern Cross G. & S. M. Co. p. Eu- 

ropa M. Co. 221. 233, 240 

Soiitiiem Development Co. v. Silva 706 
Southern Neyada G. & S. M. Co., 

Hamilton p. 822, 391, 424, 690 

Southern Padflc R. Ca o. Allen 6. 

M. Co. 688 

p. Griffin 876, 640 

. Walker p. 630 

Southmayd p. Southmayd 846, 763 

Southwestern Mining Co. 667 

Spargo, Pacific Coast M. & M. Co. p. 422 
Sparks p. Pierce 322, 428, 517 

Sparrow p. Strong 281, 319 

Speake v. Hamilton 658 

Spencer, Copper Hill Co. p. 342 

p. Kunkle 125 

p. Winselman 837 

Spicer. Reed p. 668, 745 

Spilman, Brown p. 31, 79 

Spiva p. Osage Coal M. Co. 790 

Spokane H. M. Co., Hawkins p. 761 

Spong, Samuel W. 480, 537 

Spooner, Myers p. 253 

Sprague p. Locke 726 

Spratt tf. Edwards 644 

Spray, Thompson p. 206, 211, 287. 241, 

254 258 
Spring, Eclipse G. & S. M. Co. p. 898, 463 
Spring Creek W. &M. Co., Tartar v. 196. 




Spring Valley M. & I. Co., Farley v. 664 

, UendrickB i;. 686, 694 

SprinKer r. Citizens' N. 6. Co. 08, 168 
Springfield Foundry & Machine Co. 

V. Cole 72, 776 

Springside Coal M. Co. v. Grogan 782, 

Spur Lode 222, 863 

Spurr, Williams v. 712 

Stafford, £. R. 659 

Stahl, Lee v. 894, 476, 476 

Stambftugh, Tod v. 96 

St. Anthony Falls W. P. Co. v. King 

Bridge Co. 185 

Stark, Strepey v. 252, 828, 887 

Starr, Offerman v. 44, 121, 680 

, Thomas 485 

State V. Black River Phosphate Co. 181 

V. Burt 6 

, Castleberry v. 660 

r. Fire Creek C. & C. Co. 770 

17. Goodwill 770 

V. Guano Co. 182, 708 

, Hamilton o. 781 

V. Jenkins 770 

— V. Loomis 768 

— , Martin v, 768 

V. Moore 824 

p. Peel Splint Coal Co. 771 

. Smith r. 770 

State Line & Sullivan R. Co., Mer- 

cur V. 29 

State National Bank v, Butler 761 

Steamboat Lode 875 

Steel, Caples r. 714 

V. Gold Lead G. ft S. M. Co. 805, 


V. Smelting Co. 421, 428, 614, 519, 

Steele, Charles W. 866 

V. MiUs 120 

Steese, Hunt v, 686, 726 

SteimliDg, Commonwealth r. 7, 612, 702 
Steiner v. Marks 167 

Stephan, Kline v. 431 

Stephens, New York & East Tenn. 

L Co, p. 107 

, Ovens r. 407 

Stephenson, Hamburg M. Co. 9, 506 

, Rea V, 544 

V. Wilson 674, 576 

Stems!, Noteware v. 665 

Sterrett, Funk v, 826, 837 

Stevens, Arnold o, 571 

V. Williams 445, 450 

Stevenson, Acheson o. 83, 735 

r. Wallace 677 

, Waters r. 187, 699 

Steves V. Carson 892 

Stewart, Babcock v. 764 

, I^ggatt V. 268 

e. Northwestern C. 4 L Co. 146, 588 

, Tomay v. 365 

SUncliield v. Gillls 474 

Stinchfield v. Pierce 381 

St. John V. Kidd 803, 342 

St Lawrence M. Co. v. Albion Con. 

M. Co. 355, 409 

St Louis Independent W. Co., Wolf v. 666 
St Louis M. & M. Co. v, Montana 

M. Co. 728, 740, 742 

, Montana M. Co. v. 740, 742 

St. Louis Smelting & Refining Co. v. 

Kemp 260, 261, 268, 359, 360, 418. 

Stoakes v, Barrett 196 

Stockbridge Iron Co. v. Cone Iron 

Works 698. 741 

-^— 17. Hudson Iron Co. 67, 69, 84 

Stokely v. Bridge Co. 187 

Stone V. Bumpus 652 

V. Geyser QuicksUrer M. Co. 297 

, Hoffman v. 646, 670 

, McNish V, 
— , Munn V. 
— , United States v. 
Storey, Tam o. 
Storey County, Hale & Norcross G. 

& S. M. Co. r. 
Stork & Heron Placer 
Story, Tam r;. 
Stotenburg, Freer v. 
Stoughton^ Appeal 
Stoutenburgh, Wharton v. 












Stover, Boone v. 
Stranahan, Table Mountain Tunnel 
Co. V. 262, 288, 289, 321. 341 

Strang v. Ryan 
Stratton r. Lyon 
Street, Hall v. 
Strehlow, Manning «. 
Strepey v. Stark 
Strettell v. Ballou 
Strong, Heil v, 

, Jones V. 

— , Sparrow v, 
Stront, Capron v. 
Staart v. Adams 
Startevant's Appeal 

303, 309 


374, 408 


262, 328, 337 




281, 319 




Suessenbach v. First National Bank 845, 

Suffern v, Butler 
Sullivan, Bush u, 
— — V. Hense 

V. Iron Silver M. Co. 

, Iron Silver M, Co. v. 

Summers, Page t;. 

Sunday Lake M. Co. v. Wakefield 

, Wakefield v, 

Superior Court, Eureka Lake & Tuba 
Canal Co. v. 

, Golden Gate M. Co. ». 

Susquehanna Coal Co., Lineoski 9. 
Sntro Tunnel Co. 279, 496 

Satro Tunnel r. Occidental 496 

Sutton, McCormick V. 621 

Swaim v. Craven 412 

Swain V, EJeamey 661 












Swan RiTer M. Co^ Fuller «. 610, 656, 

Sweeoev, Fort Scott C. ft H. Co. r. \>S 

, Fseeier v. 190, 859, 480 

V. Northern Pacific B. Ca 352, 381 

, Thome o. 729 

, Tyler M. Co. ». 467 

p. Wilson 816, 876 

Sweet P. Webb«r 282. 274, 290, 327 

Swift» BreCeU r. 864, 867, 868 

Switnr, Renshaw o, 838 

Sjlretter v. Hail 

. Noble p. 

Syndicate Lode MiU Site 


Table Mountain Tnnnel Co. v. Stran- 
ahan 262, 288. 289, 821, 841 

Tabor p. Big PitUburg Con. & M. 
Co. 698 

^— p. Dexter 446 

, Omaha ft Grant 8. ft R. Co. v, 20, 

69, 696, 746 

, Wight V. 217, 221, 378, 408 

Talbott p. King 872, 398, 428, 621, 522 

Tam p. Storey 413 

p. Story 222 

Tamaqua, Little Schuylkill N. R. ft 
V: Ca r. 680 

TaoKernian v. Aurora Hill M. Co. 370 

Tanner. Kams v. 156 

Tarbell, Patterson r. 226 

Tarbet, Flagstaff Silver M. Co. v. 443, 

454 692 

Tartar p. Spring Creek W. ft M. Co.' 196, 


Tathem, Rhea v. 

Taylor, Billings v, 

p. Castle 

, Clark V. 

, HUl V. 

, Kelly p. 

, Litchfield Coal Co. r. 

— p. Middletou 

, Miller r. 

, Penn p. 

, Philadelphia ft Reading Coal 

Cap. 6.36 

r. Smith 770 

, Union Mining Co. v. 383, 339, 340, 


Teoncssee Coal ft Iron Co. p. Hamil- 

Tennessee Lode 

Tenny p. Miners' Ditch Co. 
Terrible r. Gunboat 

Terrible M. Co., Argentine M. Co. r. 455 
Territory p. Lee 206 

Terry, Conner p. 658, 659 

Tesh, Lee Doon p. 205, 398 

Teias Lode, Nettie Lode v. 418 

Thomas p. Chisholm 203, 206, 396 

, Harvej p. 694, 695 

— — , H<Miejman v. 778 


Thomas p. Huklll 109, 784 

, King p. 622, 671 

V. NanUhaU M. ft T. Co. 723, 738 

, Sobey p. 127 

p. Thomasson 880 

Thomaa Iron Ca v. Allentown M. 

Co. 634, 700, 743 

Thomas Pressed Brick Co. v. Herter 696 
Thomasson, Thomas v. 880 


Thompson's Appeal 
Thompson, Buhl v. 
^— , Carter p. 

p. Chriatie 

— , Craig p. 

V. Jacobs 

, Jerem J v. 

— ^, Kistler V, 


, McLaughlin v. 

p. Newton 


p. Spray 206,211,237,241.254,268 

Thomburgh p. Savage M. Co. 740 

Thome, Blake p. 335 

— p. Sweeney 729 

Thornton, Willis W. 663 

Thrift, Morganstem v. 768 

Thurston, NewblU p. 230, 237 

Tibbals, Watts v. 6 

TibbitU p. Ah Tong 20G 

Tidwell, Pierce v. 128 

Tielke, Barkley p. 669, 671 

Tilden p. Intervener M. Co. 365 
Tiley p. Moyers 

, Moyers v. 

Timlin v. Brown 
Tinkham v. McCafirey 
Tinney. South End M. Co. v. 

Tipping V. Robbins 
Titcomb p. Kirk 
Tod V. Stambaugh 
Todd, Gary p. 

, Maxwell p. 

Todd's Valley Water Co., White v. 
Toledo Coal Co., Williams p. 

121, 125, 146, 156 

114, 155 


378, 644 

814, 428, 


80, 74, 141 




102, 154 



Tomay v. Stewart 865 

Tombstone M. Co. v. Wav Up M. Co. 462 
Tombstone Townsite Cases 252, 620 

Tome, Cross p. • 120 

Tompkins, Commonwealth v. 782 

, McGillicuddy v. 559 

Topsey Mine 3.)0 

Torrence, Brown v. 577, 583, 625, (Wl 

Tousley v. Galena M. & S. Co. 185 

Townsite of Dead wood 2<)0 

Toy Lonjr, Chapman v. 820, 721 

Trannportation Co., Petroleum Co. p. ^'^'^ 
Treas, Rhodes v. .'JHl 

Tredinnick r. Red Cloud Con. M. Co. 772 
Treganza, Gillett v. (W 

Trenouth p. San Francisco 32 1 

Trevaski p. Peard 273, 2^8 

Trevillion, Bay State G.M. Co. «. 411,508 
Trickey Placer 861 




69, 581 

66, 60, 681 


114, 673, 681 




161, 702 

828, 390 

Trinitlad C. & C. Co., United States r, 

434, 554 
Trinity Church, Mather ». 
Trotter, Maganese Co. v, 

, Silaby v. 

Troup M. Co., Robinson v. 
Trout V. McDonald 

, Rorer Iron Co. v. 

Truby, Gray v. 
^— V. Palmer 

, Palmer p. 

Trueman, Keeler r. 

True worthy Lode Claim, Smuggler 

M. i\i. u. 414 

Trust Co. i;. Quarry Co. 18, 778 

Tryon, Munson v. 718, 732, 738 

Tuck u. Downing 710 

Tucker, Columbus & Hocking C. & 

1. Co. V. 624 

•^ V. Florida Ry.-A Nav. Co. 540 

V. Masser 260, 369, 478 

, Walker v, 91, 106, 146, 679 

Tulare O. & M. Co., Buena Vista Pe- 

ti oleum Co. t*. 628 

Tuni^tall V. Christian 677 

Tuolumne County W. Co., Hoflman r. 

Turck, Colorado Central Con. M. 

Co. V. 466, 461, 694 

Turley, Granby M. & S. Co. v, 775 

Turner v. Reynolds 683 

V. Sawyer 271, 892, 409, 426 

Twin Lakes H. G. M. S. v, Colorado 

M. R. Co. 189 

Two Sisters Lode & Mill Site 507 

Tyler, Doe o. 281, 268 

Tyler M. Co. n. Laj»t Chance M. Co. 401 

, Last Chance M. Co. v. 426, 467, 4(>0 

— V. Sweeney 467 
Tyner, People's Gas Co. v. 31 
Tyson, Gibson w. 133 
, Harris v. 714 

Union Water Co. v. Murphy'a Flat F. 


U. R. & G. GraTel Co., W'atson v. 
Uhllg V. Garrison 
Ulmer v. Farnsworlh 
Uncas M. Co., Palmer v. 
Uncle Sam G. & S. M. Co.. Msllett r. 
292, 293, 290, 301, :)i>5, :« >, 

Oreamuna v. 29:5. 2!Hi, 

UnderwocKl, Burdge v. 190, 062, 

Union Cot\\ Co. 

r. La Salle 

Union Company's Mine 

Union H. & L. Co., Double v. 

Union Imp. Co. & J. T. Co., Williams v. 

Union M. Co. v. Taylor 333, 889, 840, 
Union Oil Co. 222, 

Union Pacific R. Co. t*. Crlsmon 
Union Petroleum Co. v. Bliven Petro- 
leum Co. 81 
Union Water Co. v. Crary 660, 







32, 70<) 








United Pipe Lines, Hughes v. 
United States v. Benjamin 

V. Carpenter 

, Colorado C. & L Co. v, 

V. Culver 

V. Eaton 

, Germania Iron Co. r. 

V. Iron Silver M. Co. 360, 482, 478, 


r. King 

V, Marshall S. M. Ca 

, McLaughlin o. 

V. Mullan 

, Mullan V, 

V. Nelson 

V. Parrott 

V. Reed 

17. Richmond M. Ca 

V. Rumsey 

V. Schurtz 

, Shoemaker ». 

— ^ V. Smith 

— i;. Stone 

V. Trinidad C. ft C. Co. 

, Western Pacific R. Co. v. 

V. Williams 

United States Petroleum Co., Chicago 

& Allegheny O. & M. Co. v. 75, 76, 166, 

Upson, Newark Coal Co. v. 44 

Uptun V. Brazier 70 

, Larkin v. 2l7, 220, 466 

Urton, Fitzgerald v. 106 

Utah M. & M. Co. v. Dickert & Myers 

Sulphur Co. 278, 800 

Utah- Wyoming Imp. Co., Kerr v. 556 

Valentine, Central Pacific R. Co. r. 538 
Valle, Bean u. 711 

Valley Lode 487, 494 

Van Auken, Electro-Magnetic M. & 

D. Co. V. 218 

Vnnderbilt Lode 357 

Vatidergrift's Appeal 779 

Viindergrift, Brown v. 33, 103, 157 

, Phillips V. 1«>4 

V«!i Doren v, Plested 201, 482 

V«n Meter v. Chicago & Van Meter 

C. M. Co. 172 

Vimnov, Rhea v. 704 

VHn^i^•kle v. Haines 057 

Vail Valkenburg v. HufiE 212 

Van Zandt v. Argentine M. Co. 217. 321, 

Vames, McCormick v. 280, 294, 470 

Vaughn, Butte C. & D. Co. v. 647, 670 
Venard, Hoffman v. 367 

Venture Oil Co. v. Fretts 77, 174, 176 

, Rend v. 728 

Vermont Stone Co., South Dakota v. 




Versailles Fael Gaa Co., Lynch v. 167 

, Penn Gas Coal Co. v. 191, 684 

VerTilen v. Older IB 

Vesta Coal Co., Pringle v. 686 

Veta Grande Lode 850 

Victor, Lentz r. 3.*i') 

Victor Coal Co. t;. Muir 786 

Victor Mining Co. r. Morning Star M. 

Co. 687 

Victoria Copper M. Co., Haws v. 241, 334 
Vipond, Commonwealth v. 784 

Virginia & Gold HUl W. Co., Cole S. 

M. Co. 9. 641, 719, 720 

Virginia T<ode 681 

Vogel, Webber v, 589 

W. & R. R. T. P. R. Co., Morrii v, 189 
WaddelFs Appeal 695, 598 

Waddell v. Sirooaon 791 

Wadsworth r. Marshall 700 

Wagner, Jones v. 677, 681 

Wakefield v. Sunday Lake M. Co. 161 

, Sondaj Lake M. Co. v. 170 

Waldron, Lorenz v. 664 

Walker v. Southern Pacific R. Co. 630 

r. Tucker 91, 106, 146, 679 

, Ware v. 664 

Wallace, Hamish v. 544 

, J. S. 406 

u. Jefferson Gas Co. 193 

. Shaw V. 16, 40, 52, 699 

, Stevenson p. 677 

Waliath r. Champion M. Co. 461 

Walsh 17. Hastings 555 

Walton V. Batten 879 

-^— , Jackson v. 704 

Wandering BoV 207, 362, 369, 373 

Wspelio Coal Co., Crabell v. 789 

War Dance r. Church Placer 492 

War Eagle Mine 402 

Ward c. Carp River Iron Co. 17, 18 

Warden p. Watson 40, 84, 681 

Ware V. Walker 664 

Waring V. Crow 287, 296, 335, 746 

Wamock r. DeWitt 234, 816 

Warren, Montana Rj. Co. v, 188, 190 

r. Sohn 774 

Warren Mill Site r. Copper Prince 406, 

Wasatch & Jordan Valley R. Co., 

Snell r. 683, 601 

Washington r. McBride 381, 5:{2 

Washington County, Logan v. 44, 115 
Washington Lode 872 

Washington Nat. Gas Co. t\ Johnson 138 
Water & Minin? Co. v. Bugbey 627 

Waterhouse r. Scott 412 

Waterloo M. Co. v. Doe 218, 222 

, Doe V. 224, 237, 296, 362. 386, 898, 

425, 467, 693 
Waters r. Griffith 67 

 — r. 'Stevenson 187, 699 

Watervale M. Co. v. Leach 474 

Watkins v. Gamer 559 

Watrous, Mudsill M. Co. v« 708 

Watson, Horner v. 6:}6 

r. O'Hern 102, lO;^ 

, Phillips V. 693 

V. U. R. & G. Gravel Co. 21 

, Warden v. 40, 84, 681 

Watt V, Dininny 1H9 

Watts V. Cummins 715 

V. Tibbals 6 

Way Up M. Co., Tombstone M. Co. p. 462 
Weakland v. Cunningham 46 

Weaver, Conger t-. 196, 647, 662 

V. Eureka Lake Co. 649 

, Foster i;. 715 

Webber, Sweet v. 232, 274, 290, 327 

p. Vogel 689 

Wedekind v. Craig 629 

Weese p. Barker 263, 311, 695 

Weibbold, Davis p. 198, 617, 620 

Weill p. Lucerne M. Co. 299, 346 

Weimer p. Lowery 663 

Weinstein v. Granite Mountain M. Co. 412 
VVeist V. Grant 715 

Welch, Rupley p. 196, 649 

Wellandr. Huber 212 

Wells, Forsyth p. 701 

, Poire P. 261, 426, 621 

Wendell, Polk's Lessee v. 421 

Wenner p. McNulty - 260 

Wentz's Appeal 13 

Wesley City Coal Co. v. Healer 787 

Wesling p. Kroll 170 

West, Campbell p. 668 

— — r. Owen 

» Wheeler p. 
West Granite Mountain M. Co. v. 

Granite Mountain M. Co. 282 

West Pennsylvania Nat. Gas Co., 

Jones V. 164 

, Hay p. 162, 168, 164, 165 

West Point Iron Co. p. Reymert 731 

West Virginia Transportation Co., 

Wood County Petroleum Co. v. 34 

Western Pacific R. Co. i*. United 

States 684 

Western Pennsylvania Gas Co. ?'. 

George 1 43 

Western Union Fuel Co., Oskaloos/i 

College r. llio. 60G 

Westmoreland Coal Co.'s Appeal 12 

Westmoreland ("oal Co., lIiiLrhes /•. 126 
Westmoreland Nat. Gas ("o. r. De- 
Witt 30, 81, 32, 79, 82, 110, 733 
Weston, (Jill r. 142 

, National Transit Co. p. 702 

, Patrick p. 761, 7(W 

Wettengel v. Gormley 75, 77 

Wharton, McCahan p. 97, 98 

p. Stotenburgh 05 

Wheatley v. Baugh 672 

Wheeler, Hague i\ 83 

, Hyman r. 464 

, McKinley p. 203, 204, 206, 286 




Wheeler r. Smith 199, 202, 367, 418, 480^ 


V. West 68 

Whitaker v. Brown 85 

White V. Barlow 000 

v. Lee 281, 479 

V. Manhattan Ry. Ca 823 

». Todd'a Valley W. C©. 040 

White Cloud C. M. Co. 852 

Whitebreast Fuel Co., Carr 9. 93» 120 
Whiteinao v, SeTeranoe 194 

Whiting V. Hill 
Whitman o. Haltenhoff 
Wickersham v. Chicago ZIbo Ca 





Wienbroeer, McGlenn r. 201, 482 

Wier's Appeal 088 

Wigemaii, Godcharles v. 769 

Wiggerhaufl, Sangamon C. IL Co. v. 782 
WigginB, Girard Coal Co. v. 789 

Wight V. Tabor 217, 221, 873, 408 


278, 315, 406 

472, 474 

Wigton, Ashman v. 
•^— -, Commonwealth v. 
»-^, Miami Coal Co. v* 
Wilcox, Eaton v. 
Wildman Quartz Mine 
Willielm V. Silvester 
Wilkeabarre Coal Co., Common 

wealth V. 782 

Wilkinson, Moore i;. 419 

, Moxen v, 276, 898, 479 

V. Northern Pacific R. Co. 636 

Willauer's Appeal 779 

Willett, Clark v, 663 

Williams* Appeal 129 

Williams, Aspen C. M. Co. p. 880, 882 
— , Chalfont v. 
— — , Depuy V. 

, Edward W. 

, Frederick N. 

V. Fulmer 

— 17. Gibson 
1;. Gnffy 

— V. Hay 
, James v, 

, John E. 

V. Morrison 

— v. Mountaineer G. M. Co. 
, People V. 

V. Pom eroy Coal Co. 

V. Short 

V. Spurr 

, Stevens v. 

V. Toledo Coal Co. 

— V. Union Imp. Co. & J. T. Co. 627 

, United States v. 604 

Williamson v. Jones 15. 29, 84, 789 

Willis, Glacier Mountain S M. Co. v. 286, 

828, 884, 476, 570 
Wills V. Blain 314. 838 

. p. Manufactures' Nat. Gas Co. 112, 

159, 163, 164, 166 
Wilms V, Jess C7S 

Wilson V. Beech Creek Coal Co. 09 

. 222 











635, 700 

446, 450 

Wilson, Crmw «. 

p. Henry 

— , Morenhant o. 
— , Roberts v. 

p. Smith 

, Stephenson p.- 

Sweeney p. 


574, 675 

108, 207, 908 


674, 676 
816, 376 

Wilson Creek C. H. & IL Ca p. 

Montgomery 487, 494 

Wimer p. SiraqDons 668, 669, 671 

p. Smith 714 

Winchester, Peon Coal Co. p. 183 

Winder, Hess v. 321, 822, 826, 725 

Wingate Placer 876 

Wmscott p. Northern Pacific R. Co. 381, 

Winselman, Spencer p. 837 

Winter Lode 222 

Winters p. Bliss 879, 646 

Winthrop M. Co., Original Co. p. 272, 290 
Winton Coal Co. p. Pancoast Coal Co. 29 
Wisconsin Central R. Co., Court- 

right p. 639 

Wiseman p. McNnlty 802, 756 

Wixon p. Bear Rlyer & Auburn W. « 

& M. Co. 620, 660 

Wolfp. Guffey 166 

p. St. Louis Independent W. Co. 660 

Wolfley p. Lebanon M. Co. of N. Y. 

218, 290, 353, 463, 464, 471 
Wolfling, Richard p. 278, 548 

Wolverton p. Nichols 391, 398 

Womble, Castle p. 222, 381 

Wood's Appeal 778 

Wood V. Aspen M. & S. Co. 
— , Henry 
—,. Seymour r. 297 

Wood County Petroleum Co. p. West 

Virginia Transportation Co. 34 

Woodbum*8 Estate 14 

Woodburn, Berry p. 759 

Woodhouse, Fairbanks p. 287 

Woodruff V. North Bloomfield Gravel 

M. Co. 285, 616, 619 




Woods, Crandall p. 
Woodward, Audenried p. 

Delaware, Lackawanna 




Western K. Co. 116 

, Lacey v, 278 

Woodman, Neuebaumer J^27 

Woolman r. Garringer ('»5(> 

Worcester, Barry v. 70 

V. Green 89, 580 

Worrall, Fisher r. 714 

Wriglit, East Jersey Co. v. 41, 55, 59, 172 

, Lehii»li & Wiikesbarre Coal Co. r. 

91), 100, 122 

, Lerov v. 723 

, Mc(;"uireP. HI 

, Y«n(le3 r. 679 

Wulff, Manuel v. 205, 206, .S23, 840, ««9 
Wyoming Coal & Trans. Co. v. Price 182 

Wyoming Valley Coal Co., Fairfield v. ^ 




Vaxobs ft Wright 
Vappen, Maye v. 
YouffhifMrhenv Kii 



ioughiogheoj' Kiyer Coal Ck>. r. 

Pieice 73 

•7-, Kobertaon v. 686 

Voung, Bromao v. 74 

— , CaUett u. 788, 789 

V, EUU 168 

'^' — I Thompcon o. 812 

Vottngman, Clement 9. 62, 66, 73 

Yuba Cottoty v, Cloke 
Yung, Coal Co. v. 



Zadio v. Central Pacific K. Co. 381 

Zeckendorf v, Hutchinson 340 

Zimmerman, Northumberland County v. 

Zinc Co. V, Franklinite Co. 131*, 182 

Zollars V, £van6 216, 449 


The extended experience of one of the anthers in the vork of a 
miuing engineer and geologist has conviuced him that it is abso- 
lutely necessary to have a clear uuderstandiQg of the differences 
between the various kinds of miqeral deposits and their mode of 
occurrence in nature, and also to know something of their origin, 
in order to properly appreciate :zKwj of the legal questions which 
have arisen in connection with them- Id fact, aome important 
legal distinctions are founded entirely upon these {physical, or 
more properly, geological differences. 

Every lawyer who baa a large practice in ouniag law should 
therefore have some kuowledge of geology, and to such the author 
is glad to recommend the admirable works of Prof. Joseph 
Le Conte. By a careful study of these works be can get a better 
idea of American geology and of the fundamental principles of 
geolc^ in general than from any other work with which tbe 
author is familiar. 

The information contained in the following pages — a large 
portion of which is very generally recogni^^ed by those versed in 
geological science, but which is not at all well understood by 
those unfamiliar with such science — will be sufficient, however, 
it is hoped, to give a general idea of the subjoct, and onaUle tlie 
reader to have a clearer understandinjr of manv of the phvsical 
Jind geological differences between the various kinds of mineral 
deposits, and therefore to better appreciate the reason for the 
legal distinctions which are based upon these differences.^ 

* For the definitiun of the term " min- and uses of the minerals herein referreil 

eral" in a legal sense, e«e page Ixxvi, under to. see a work hv the antlior under the title 

diii^ion ** Natural Gaa." of** A De^rription of Minerals of Commer- 

For a more complete description of rial Valne," published in 1897 by John 

the chancterifltics, the mode of occurrence Wiley & Seni*, New York. 



All rocks known to us are of two great classes, sedimentary 
and eruptive. 

First. Sedimentary Rocks, as implied by their name, are those 
which are of sedimentary origin. That is to say, they originatcn] 
in accumulations, through the distributing agency of water, of 
(1) either rounded or aiigular pehble» or sand (minute quartz peb- 
bles) of (2) mud or finely divided clay^ and of (3) calcareous nilt 
(coral mud) or sometimes of minute sheUs^ at the bottom of seas, 
lakes, and rivers. 

Tliese three kinds of sediments, when consolidated, have made 
respectively pebble beds (conglomerates or breccia) or sandstones^ 
shale or slate beds, and limestones. 

By far the great majority of these, and always the first two, 
must have been derived from the ruin or breaking down of other 
rocks, either eruptive or stratified, or both, composing laud areas, 
and it therefore appears that most of these rocks are of littoral or 
near shore origin. The first two, sandstone and shale, difTer 
from each other only in the degree of fineness to which the de- 
tached fragments have been ground in the process of erosion, 
which will be referred to later. 

Limestones, in tnany cases, liave also had a somewhat similar 
origin. They have been formed by the degradation of great coral 
reefs and the subsequent pulverization of tiie detached fragments 
forming coral sand, or more frequently coral mud. It is thought 
by some that limestone beds have frequently been formed by the 
precipitation of carbonate of lime in the sea water. This tlieorv 
of chemical origin may possibly be true in some cases, but the 
former physical theory of origin is regarded as more probable in 
the majority of cases. As might be inferred, many limestones 
have been formed from the erosion of pre-existing limostoncs, 
the fine granules being carried mechanically in suspension in 
water, and finally deposited as a sediment. Of course in tlio 
same way many beds of sand and of mud are derived from prtv 
existing sandstone and slate strata. Some limestone, chalk, ami 
marble l>eds, however, are formed entirely from an accumulation 
(and subsequent consolidation ") of myriads of small calcareons 
shells upon the sea bottom, — deep-sea ooze, for example; vet 


all limestones are apt to contain various kinds of shells as they 
originally existed in a matrix of coral mud, in much the same 
way that shells on the sea floor, from very remote geological 
periods to the present, have become imprisoned in an accumu- 
lating bed of sand or of mud, which was brought to its present 
position through the agency of rivers or of ocean currents. With 
the exception of the so-called Primitive and Algonkian rocks (and 
in these they have probably been obliterated, owing to the fierce 
and numerous bakings which the rocks have received) nearly all 
sedimentary rocks contain evidence of many of the life forms 
existent in the ages when, as sediments, they were laid down. Of 
course these fossil remains are principally of marine origin, but 
the remains of many amphibian and land animals, and often of 
birds, have frequently been imprisoned in an accumulating bed of 
sand or mud, as, for example, in a lake, or in the alluvium of a river, 
or along a sea or lake beach. We are thus afforded an absolutely 
truthful but unfortunately very meagre record of the evolution of 
the various types of life forms from the earliest times. 

Now and then a bed of volcanic ash consolidated into hard 
rock is met with, or beds of infusorial earth formed from an 
aggregation on a sea bottom or lake bottom of the silicious 
remains of microscopic life forms (diatoms) ; but as these are rare, 
and as the latter appear to have been principally formed only in 
late geological times, the three classes of sediments above men- 
tioned, which when consolidated are referred to as sandstones, 
shales, and limestones, may be broadly considered as comprising 
all of the sedimentary rocks.^ 

These sediments are nearly always commingled, and we have 
as a consequence sandy (arenaceous) shales and sandy limestones, 
shaly (argillaceous) sandstones and shaly limestones, calcareous 
sandstones and calcareous shales, sometimes referred to as marl 
beds. These names* are applied to the strata formed by the de- 
posits accordingly as the original sand, mud, or calcareous matter 
predominates. On the other hand, it is often remarkable how 
very distinct they are from each other, owing largely in all prob- 
ability to the sorting effect of the water carrying the sediment, 

^ It should be mentioned in |>a8sing of life forms have the facnlty of abstract- 
that diatoms have the faculty of abstract- ing the carbonate of lime out of which 
ing the silica from the sea water in much their shells are made, 
the lame wajr as the coral and other kinds 


and also to mnny imkuowii coiiOitinns sniTouiidiiig tlieir dcpusi- 
tioii, Theac sudLiiK-'HtB, as can bo rfadily understood, were )>rin- 
oipally laid down at the moiitlis of liveiH, or ou the sea boltom 
near to the shoie lino. In tlie majority of cases it is certain tliat 
the deposition of llie sediment proceeded with inconceivable shm- 
nesa. In some cases, however, it is certain that these sediments 
were deposited far from the shore, as ocean currents wonld easily 
carry such finely divided aedimentfl a long diotance from the shore. 
The origin of some chalk beds is probably explained in tiiis way. 

After, and often l>efore, being consolidated into hard rock (by 
pressure of sediments, and often by a cemenlin^ 
process due to the chemical action of some of the constilncnrs of 
the deposited material, such as iron, lime, silica, etc., or by heat) 
these sediments have been raised and have become land ar'cas. 
When consolidated, these form the ordinary stratified rocks with 
which all are familiar, and vhich form the greater part of the 
iurface of the earth exposed to our examination. They are oftea 
found aggregating many thousands of feet in thickness. An in- 
dividual bed of any of the kinds mentioned in such a series of 
Stratified locks may vary from a few inches or even a fraction 
of an inch to hundreds and, in rare cases, several tliousands of 
feet in thickness. They, however, usually alternate conetaiitif, 
owing to the differing conditions which produced them. 

Familiar se(>ti<inB iif Rtratifleil Itockn ((ieikie).^ 

In some cases, and especially wlien they are of great geological 
ago, these beds or strata have been heated or baked and com- 
pressed to such an extent that they have lost their original char- 
acter of sandstone, shale, and li ncstone, and have become 
reajicctively (juartzite.s, slate, and marble beds. This mctnnior- 

' Many of the diaj^rains contnineei in piiriwJW'ly niiule very Himp!" in rhamrWr. 

thin Pretai'e nre takeii from well-known nnil nre int'^iiiW t<i remler muro cle&r tlio 

trpatiBea on peolofrii-al siibjectB. (Ithera sniiipuia diBL'uwcil in ttio text. 
are from sketches by tbe author. All are 



pbisin bas often proceeded further, and lias absolutely altered tbc 
character of these rocka, bo thiit the original compact sandstuiH! 
or shale has been converted into a rock totally different from its 
original character or that of the rocks which we know by these 
names. Such rocks, in a general way, are known as metamorpliic 
or crystalline rocks. Among such as were originally in the con- 
dition of mud or snod, and aubsequently, through consolidation, 
shale beds and sandstones, by further metamorphism wu find 
many in the present form of slates, quartzites, gneisses, aud 
giieisBoid rocks in general, micaceous, talcose, and other schists, 
some Bo-calted porphyries, some kinds of granite, etc. It is 
important to remember this fact, becauae many valuable ore 
deposits are found in the very old rocks of this description. 
Tliey are usually, and sometimes rather loosely, referred to as 
Primitive Rooks, ArehAab ond Algonkian Rocks» Crystalling 
Bocks, Uelamerpbic Rocks, eto.^ 

Higblj tolded mi nyitalliDe PHmittve Rocki {Ja^ui). 

Dptnrned and Eroded Strata in Colorado (Haydcn). 

* It mnat not be thoof^ht fmm thle necesMrily of Redimentary orii^n. Tor IE ti 

* an gneiMoid and tlnilar rock* are extremely probable that many ot tb«M 



The third sedimcntarj rock (limestone) cannot be metamor- 
phosed, generally speaking, further than marble, which is geo- 
logically termed crystalline limestone. Rarely, however, it has 
been converted into the rock known as serpentine.^ Limestone, 
whether uncrystalline or crystalline, — in this country, however, 
usually when in the former condition, — is a most important 
repository of many valuable metallic ores, its calcareous nature 
having, in some way not always thoroughly understood, exerted a 
very favorable influence upon the deposition of mineral matter, 
especially of certain kinds. Much of this mineral matter, as will 
be seen in the latter part of this geological preface, was probably 
contained in hot waters which have come up through or in juxta- 
position to the limestone strata. 

Second. The second great class of rocks are those which are 
known as Braptive Rocks, and which have all, at one time or 
another, been in a molten (semi-fluid or fluid) condition. The 
material from which these rocks have been formed came up from 
unknown depths or melted areas in the earth, either through the 
vents of volcanoes or more frequently through great or small 
cracks or breaks in the rocky cmst above, and was poured out 
over the then surface of the earth. Sometimes, however, it has 
not reached the surface, but after coming up a certain distance 
was unable to ascend further, and subsequently slowly solidifled 
far beneath the surface. In one form or another these rocks 
probably form a large portion of the earth's interior, and un- 
derlie all stratified rocks, but at varying depths. It is not at 
all certain that they form the central mass of the earth, and they 
are by some supposed to occupy, generally speaking, a position 
between the outer crust and the interior central mass, whatever 
the nature of the latter mav be. 

These eruptive rocks are of '^ many kinds, owing to their differ- 
ent chemical composition. These are, in a jreneral way, all of 
the granites (except some of the metaniorphic granites above 
referred to), syenites, and porphyries, as well as the rocks which 

are very ancient and grratly metamor- many of these very old rocks, and some of 
phuscd eruptivcs. The schistoso structure the hest Canadian ii^eolo^ists are di8po>ed 
of many of thene rocks has prohuhly heen to douht the original sedimentary charac- 
given to them hy snhsequent heatiu<; ami tcr of many schists and kindred rocks, 
great pressure. The researclies of the ^ Most serpentines, however, are 
(Canadian Geological Survey have thrown changed eruptive rocks known as pen- 
much light upon the probable origin of dotites. 


are known as dioritc, trap, diabase, basalt, plionolite, rhyolitc, 
trachyte, ondesite, gabbro, obsidian, pumice, etc. 

In mining, one usually meets with these rocks either as lava 
flows, wlien they form great beds often extending over large and 
usually very irregular areas, or as dikes which have welled up 
from below through crevices or cracks in the pre-existing and 
overlying rocks. These pre-existing rocks may have been either 
sedimentary or eruptive. This is merely a matter of accident, 
according to the character of the rocks at the localities where 
the volcanic agencies to which the eruptives owe their origin 
have been acting. Thus we often find that dikes of trap or 
some other eruptive rock have come up through coal measures, 
and through the coal beds themselves. Often ore deposits, which 
in many cases had been formed before the injection of the 
molten material, are found to be cut in two by a so-called dike. 
At other times these eruptive rocks have come up in immense 
masses, pushing aside the strata above or extending their liquid 
tongues far out between the stratified rocks, usually along the 
lines of stratification or at a very small angle with them. They 
often appear to be stratified when this has occurred, and es- 
pecially is this true when they have been poured out over the bed 
of the sea in which sediments were being deposited and after- 
ward covered with sedimentary material. Sometimes we meet 
with a bed or flow of lava containing innumerable angular frag- 
ments of eruptive rocks cemented together by the lava. Some of 
these were very probably thrown out of an old crater, and in fall- 
ing became embraced in the lava flow ; or more often the&e angu- 
lar pieces simply represent the unfused portions of the igneous 
rock of which the lava represents the fused portion, the two hav- 
ing been brought up together through the volcanic vent. It 
sometimes happens that angular rubble has been picked up by a 
lava flow. These rocks are called volcanic breccia. 

These eruptive rocks, especially when in the form of dikes, 
should be studied very carefully ^ because of the important part 
which they have played in the origin of deposits of the valuable 
metals or of their ores ; for in the great majori.ty of cases where 
deposits of these metals are found, eruptive rocks of one character 
or another are apt to be found traversing the neighboring country 
rock and often in the immediate vicinity, although the converse of 
this proposition is far from being true. It can be proven in a great 


Mode of Occurrence of Ij^iieons Rocks (LeCooM). 

Dike* of one kind of Ernptive Rock cnttioK throoKli moimtain mmm of uiotber 
kind of EnipCive Kock (Geikie). 

toany cases, not only that the region which became mineralized 
Was very hot during this prooeae, but that the dikes or eruptive 
rocks came up at approximately the same time that the ore dc- 
})OB)tB were formed. The intimate connection between the two is 
thus established. The formation of the dikes is usually stipposcd 
And is often known to have preceded the mineralization ; that is, 
the material froiii which they are formed was in the majority of 
Cases injected before the latter process was begun. These dikes 
vary from a foot or le»e in thickness to thousands o( feet, and 
may be traced across the country only a short distance or for 
many miles. Sometimes mountain masses are made up of dikon 
of one sort or another, or several kinds in juxtaposition or iiitcr- 
aectin^ eacli other. Those which are commonly recognized oa 
dikes, liowever, are usnally not very tliick, being from one up ti> 
somewhat over one hundred feet. 

Examples of Dikes greai: and amalL 


Eruptive rocks can usually be distinguished with great ease, 
not only from the position they occupy and the absence of the 
lines of sedimentation, but also by their general appearance, from 
any of the three stratified or sedimentary rocks above referred 
to; namely, sandstones, shales, and limestones. Sometimes, 
however, as in the case of some of the metamorphic rocks of 
both classes, it becomes difficult to do this. In such a case it 
IS necessary to send a specimen of the rock to some accredited 
petrograplier so that he may examine a section of it under the 
microscope. In this way its original character can usually be 
determined without difficulty. 

Rook Folding and Fanittus. — It miist be remembered that all 
these rocks, both sedimentary and eruptive, are frequently found 
to occupy positions now which are quite different from those 
originally occupied by them. Thus, consolidated sediments of 
tliousands of feet in thickness may have lain for perhaps millions 
of years undisturbed in a nearly horizontal position, when, owing 
probably to the slow cooling and consequent irregular contraction 
of the interior of the earth, the so-called orust is thrust upon itself 
with an inconceivable force. By means of this pressure applied 
horizontally, or approximately so, nearly level strata are bent 
and twisted along certain lined of weakness in every conceivable 
manner, though they may have been the very hardest kind of rock. 
Of course all rocks, sedimentary and eruptive, composing the so* 
oalled crust are involved in this folding or crushing, but it is more 
easily discerned in the case of the former than in the latter. VoU 
canic action sometimes produces somewhat similar results; but 
when it has been the cause of the tilting of rocks, tlier disturbance 
has usually been I'egional, and very great areas have not been 
involved, as has been the case where the former agency has been 

Section of Appalachian Kange showing folded strata (Kogera). 

Accompanying this folding or crumpling, but sometimes without 
it, as in the case of certain earth tremors produced by volcanic 
a^ncies, cracks or fissures have been established which reach to 
unfathomable depths, and the whole mass of rock on one side of 


these cracks ia often found to huvc moved up or dowD, bringing 
strata of different ages or different rocks, or different portions of 
the same rock, opposite each other. These slips or disphiceuicnt^ 
vary from a few inclics or less to many thousands of iVet, and 
are common in all area^ where there has been much folding or 
uther evidence of regional disturbance, volcanic or otherwise. 
This establishment of cracks when there has been such a. slipping 
is known && faulting, and these faults must be studied most care- 
fully in connection with ore deposits. They are, of course, just 
as abundant in eruptive as .in stratified rocks. So-called dikes 
of eruptive material have often come up through them, having 
found in such fissures a convenient avenue of escape, iloi'cover, 
it is largely through the agency of crevices formed in some such 
way that the majority of the deposits of mineral matter, which we 
know as ore deposits, have had their origin, for the simple rcasoti 
that were it not for these fissures or deep-reaching cracks the 
hot waters, or perhaps in some instances vapors, which have pro- 
duced many valuable deposits of ore, could never have come up 
with their load of mineral matter from the source from which 
they obtained it The original sources of the elementary suli- 
Btances, which, when subsequently deposited, usually combined 
with one or more other elements, form many of our metalliferous 
deposits, will be perhaps forever unknown ; for we will probably 
never be able to know sufficient concerning the interior com- 
position of the eaitb at such depths belou the surface as those 

Sonlhwegt Virginia (Lesle;). 

Inclined and Vertical Fanlta. A group of Fanlta (Gaikia). 


from which many of them have certainly been derived. Later 
faults, long after the deposition of the mineral matter had ceased, 
have often cut these ore deposits in two, and in some cases they 
cause the miner a great deal of trouble. 

Boil. — Soil is usually the result of the gradual decay of the 
superficial portion of the solid or consolidated rocks beneath, and 
which are said to be in place; that is, through the physical and 
chemical agencies of rain, frost, or other atmospheric action the 
superficial portion of the rocks has gradually become rotten and 
has slowly dissolved into soil. A great portion of the soil of the 
world is of this description, and we observe here, simply, the first 
step in the grand work of erosion, since solid rock must first be 
disintegrated by chemical or physical forces, or by both, before it 
cai>be removed by the rainfalls which carry off this material to 
the rivers and so down to the sea. 

In some cases, however, soil is alluvial ; that is, it is composed 
of material (usually mud with some vegetable matter, and often 
including pebbles and sand) which has been brought from some 
locality more or less distant from that now occupied by it through 
the action of water. Many old river and lake bottoms furnish soil 
of this description. Somewhat similar in origin is the kind of soil 
which is produced by the recent raising from underneath the sea, 
of unconsolidated marine sediments. Thus the upper portions 
of many late Tertiary and Quaternary strata now covering 
land areas have become what we know as soil. For example, 
there is much soil of this description in the southern portion of 
the United States. But, generally speaking, most of the soil of 
this country, as of the rest of the world, is produced by the ex- 
ceedingly slow rotting of the upper portion of the solid rocks, 
stratified or eruptive, immediately underneath.^ It is thus easy 
to see that the value of land for agricultural as well &s for min- 
ing purposes must alw^ays depend upon the geological conditions 
which may be found to exist over any given area. For cxnninlo, 
limestone and some eruptive rocks, when they are snperficiully 
converted into soil, often make excellent farming land, while sand- 
stone and other classes of eruptives usually make poor land, etn. 

Eroolon. — Another very essential point — and especially essiMi- 
tial in the study of mineral deposits — to which it is desired to call 

^ In glaciated regions we often find and even 8oil hare been shifted by the \rn 
that large quantities of boulders, pebbles, sheet. 


attention is that one cannot overestimate the importance of the 
process which is known geologically as erosion, and which has 
operated everywhere on hmd areas since the earth cooled suffi- 
ciently to permit of oceans. Even those who have given nnich 
study to geological phenomena often fail to appreciate properly 
the huge mass of material which has been removed by the various 
agencies of erosion. These agencies are rain and the 
atmospheric action mentioned, rivulets and rivers, the ever-acting 
agency of the sea berating upon a coast, glacial or ice action, etc. 
Glacial action, however, has not h^en nearly so important a factor 
as the others. All stratified rocks, often of many thousands of 
feet in thickness, hav« certainly been formed from the ruin or 
disintegration of previously existing rocks composing laud areas 
which have been mainly eaten away by the sea, or by the action of 
rain falling upon, and of the rivers traversing, these arcaa. Even 
when throwing out of consideration the immense thickness of the 
older stratified rcksks, which of course ow« their origin to the ero- 
sion of ancient and unknown land areas, it is at present possible 
to prove that upon many portions of the earth exposed to our 
examination several miles in thickness, or rather in height, of 
solid ix)ck have been removed from the surface of a given area. 
At any place whatever it is impossible to form a correct idea of 
the huge amount of material which has certainly been worn away, 
earricd off, and deposited somewhere else. Brosion can be ob- 
served and studied to best advantage in the case of stratified 
vocks, but we know nothing of the amount removed from the 
older rocks, sedimentary or eruptive, upon wiiich, as the floor of 
some ancient sea, these sediments were laid. So on it goes, and 
probably will for countless ages, in what appears to be an endless 
cycle, always a tearing down and rebuilding, a never-ceasing con- 
flict between the forces which elevate continents, and the rainfalls 
which endeavor to reduce these to the common level of the sea. 
This is one of the reasons that we so often find nothing remain- 
ing of the outpouring of eruptive material, but only find the neck 
of an old crater or else the so-called dike, which occupies the 
vent or rift through whicli this rock came up when in a molten 
condition. The famous Palisades of the Hudson are an example 
of the latter. Practically all mountains, no matter how high, and 
other topographical scenery are due simply to the irregular action 
of erosion which has carved out valleys, often, though not always^ 


indicating softer rock, and left standing the Iiills or mountain 
ridges, which frequently mark the position of harder or more 
unyielding rock. But from above the tops of these very, hills or 
great mountains themselves there is good reason to believe, and 
in fact we frequently know, that thousands of feet of rocky mate- 
rial have been removed by exactly the sanie agencies. Whole 
series of strata of great thickness have often been slowly bent 
and fearfully crumpled, and thus elevated over vast areas, and 
then afterwards greatly eroded, giving rise to e£fects that could 
not lie easily understood were it not for the appreciation of the 
grand results accompliahed by the denuding agencies mentioned 
above. This is going on at the present time, but with incon* 
ceivable alowneaa, yet perhapa quite aa rapidly as it haa during 
different portions of the past many millions of years. Of 
course the denuding and rebuildjng agencies have operated some- 
what more rapidly at certain times than at others, as in times 
▼hen there was a grei^t amoupt of pveoipitation, but, so far aa is 
kaqwQ, always wUh exceeding alownena And yet we tcnow that 
twenty or thirty thousands of feet of sediment, or even more, 
covering hundreds of thousands of square miles, were accumu- 
lated during a single geological age! 

It is the appreciation of %\\e9^ thinga which gives one a slight 
inkling of the abaolut^lj ipe^oneeivable vaatnesa of geological time. 
It also makea an; attempt to compute this tioie moat difficult ; 
for, so far aa we now know^ we have no data of a definite charac- 
ter to reason upon. In the autlior's opinion, any calculations 
based upon thickness of strata and other such data must of ne- 
cessity be very unsatisfactory, because we know nothing whatever 
of the conditions — amount of precipitation, etc. — which jire- 
vailed at the time these strata were laid down as sediments. All 
we know is that "time is long,'* geologically conaidercMl, — so 
lon^r, indeed, that the human mind cannot compass its vastness. 
The iiisturv of the world as recorded in its stratified rocks contains 
irrefutable evidence of an age equal to many millions of years, 
iM'vond which, however, lies that which Professor Le Conte aptly 
calls the " inflnite abyss of the unrecorded." ^ 

^ Loftd Kelvin has recently given it as ever, it is submiltcd that these fifi^areH may 

hifiopinion that the earth Kolidified between he very far from the truth; nnch a distin- 

twenty and thirty millionfi of yearn ago. In gnisihed authority to the contrary uotwith- 

^ present stage of our knowledge, how- staudinj^. 


Sectioiu betveeo River VaUeft abowing Eionon (PtiiUijM). 

Ideal Section noKb and tontb from Canada to Pennsvlvania (L« Conl«). 

Antii-linal Fold. 

In the diagrams it will Iw observed that where the strata hstvo 
hoen subjected to enormoiia pressure aiiplicil horizDiitatiy. ;iiid 
Iiroducing the foldinp already dcsciilHii. vallevs Inivc often bci-n 
carved out of anticlinal rather tliaii svnclinnl folds." This 
is due simply to tli.- fact that whrrover u start has Ixeii niiido 
in the top of siicli n fold. — sometimes lluoiiirh the on.!iin:il nml 
constant assistance of sonic crack, which is very often a f;iiiit, 
— i-ain or snow water rinminjr cither way d'-int the lines of strati- 
ficatiim or of sedimentation has been able, tlion^h with infinite 
slowness, to carve ont a irreat valley — freqnently a nuiabcr of 

: praraiiiv. whereas in ErDclinal folda thej 


miles wide &nd several thoueand feet deep — much more readily 
than in the case of a syaclinal fold. Tliis h the simple explana- 

FiHore Spring and Ane^ao Well (Le Conle). 

Dlagmn showing gently folded Strata and Amonot carried anav bj Erogion. 

tiun of what otherwise appears to he a rather curious phenom- 
cnoiif and one which is constantly ohserved in nearly all regions 
occupied by gently folded strata. 




(a.) Non-meUUlic Minerals, 

Coal. — This 18 the simplest of all mineral deposits. Unlike 
most of the others, it is of sedimentary origin, and therefore it is 
clear that it must be distinctly stratified, and, moreover, that 
it cannot be found except in association with stratified rocks, 
usually strata of sandstone and shale. It is supposed that coal 
was derived originally from accumulations of decaying wood or 
other vegetable matter forming what are generally supposed to 
have been peat bogs or swamps* It is supposed that most of the 
beds of coal were formed at the mouths of rivers as they emptied 
into some gulf or brackish arm of the sea, because the fossils in 
the enclosing rocks are not those which are usually found in salt- 
water sediments. It is probable that they were formed usually 
at a place wliere the water was shallow, and where the areas 
covered by these peat bogs or original forest swamps were under- 
going a gradual subsidence ; but after being submerged, owing to 
the more rapid accumulation of sediments of sand or of mud, 
these areas were reclaimed and again appeared above the surface 
of the water, when luxuriant vegetation is supposed to have again 
sprung up. This explanation is not in all cases absolutely satis- 
factory, except as to the gradual subsidence of the land and the 
contemporaneous and more rapid deposition of sediments. It has 
therefore been suggested that in the case of some seams of coal, a 
portion, if not all, of the vegetable matter from which the coal has 
subsequently been formed — ferns and other vegetable life of that 
day — was originally washed or drifted from some other locality 
than that where it was deposited and now lies. In other words, 
that in the case of some coal beds where it cannot be proven that 
the vegetable matter grew and rotted in situ, it was deposited in 
its present position somewhat atter the manner of the other sedi- 
ments which accompany these deposits, that is to say, partially, if 
not in some cases wholly, through the assistance of moving water. 
While this is certainly not wholly true with regard to a large pro- 
portion of coal deposits, there may be much truth in the theory. 


Limbs of trees maiiv feet long, now converted into coal,&re Home* 
times found lying horizontally in a coal bed which ia not more 
than four or five feet in thickness, and yet nothing whatever eui 
be found of the trunk or roots of the tree of which this limb 
formed a part, either in the coal itaelf or in the nndertying or 
overlying strata. In fact, the line of demaraation between the 
coal bed and the sandstone or slate (rarely limestone), which 
overlies or underlies the coal bed, ia frequently very abrupt. This 
phenomenon and that of the thin parting of slate (original mud), 
which has no roots whatever penetrating it, and which ia so 
often found in a seam of coal, and is often almost aa ezteaaive as 
the coal bed itself, is more easily acoounted for oq this theory 
than on that of an original peat swamp. Again, while roota of 
trees are foand in the case of some ooal bods, aa for example in 
England and in Nova Scotia, their absence in the underlying sedi- 
ments, aa already implied, is significant of an origin somewhat 
different from that which is generally attributed to ooal beds, and 
which supposes the vegetable matter to have grown and rotted in 
the place now occupied by it transformed into coal. In mauy 
cases, however, the latter theory of ooal accumulations can be 
proved to be the correct one. It has been suggested that there 

LoTel NDil UptuBsd StnU coDtaiuiiig Bed* of Coal. 

BofCoia Field iD Ohio showing alM an Intentratiflttl B«d of In»Oi» 


may be truth in both theories, and that both agencies may have 
contributed to the formation of what we now know as a bed of 
coal. There is much to recommend this view. 

It is quite certain, however, that the land area and, of course, 
the sea bottom, or sea floor, as it is commonly called, during these 
coal-making periods were undergoing a gradual subsidence, and in 
this way the fact of the existence of a great number of coal beds, 
— sometimes thirty to. forty, — one above the other, or younger 
than the other, with intervening strata of sand or of mud sedi- 
ments, with an occasional bed of limestone, is explained. Some 
of these original deposits of vegetable matter or coal marshes, 


whatever their nature may have been, were evidently of great ex- 
tent, as is shown by the wonderful continuity and immense area, 
covering often hundreds and thousands of square miles, of some 
of the coal seams of the present day. Perhaps as the land under- 
went a gradual subsidence the coal marsh as gradually crept 
landward. Other seams are of very limited extent and very irreg- 
ular in shape, probably conforming, as is thought, to the shape of 
the original peat marsh or swamp from which the present coal is 
supposed to have been derived. Or, as suggested above, it is pos- 
sible in some instances that the ' irregular contour of the area 
occupied by present coal beds may be partly due to the irregu- 
larity in deposition of the original drifted accumulations of vege- 
table matter. In this general way we account for the fact that 
very frequently a coal bed, like a bed of sandstone or of shale, 
will get thinner and thinner until it ceases to exist ; but a short 
distance further on a bed of coal will be met with in the same 
geological position ; that is, between the same underlying and 
overlying rocks, — for example, between the same slate (shale) 
and sandstone strata. As is well known, a bed of coal is apt to 
be thicker at one place than at another, but we are not concerned 
immediately with these vagaries of coal deposits. It is sufficient 
for our purpose to remember that they are distinctly stratified and 
interbedded layers, extensive over very considerable areas, and 
varying from a few inches, or a mere band, to sometimes twenty 
or thirty feet in thickness, or rarely considerably more. 

The diagrams will give an idea of typical coal deposits, and will 
also show how portions of a coal scam and of the accompanying 
strata have often been carried away by erosion. Some of thcni 
will also show how these sedimentary rocks have been folded, 


and are not now lying in their original horizontal position. Of 
course the coal, being held within tedimevtary rockt, must conform 
to all the twists and turns observed in the latter. An excellent 
example of folding of sedimentary strata can be observed in the 
anthracite region of Pennsylvania, and for this reason a diagram 
illustrative of a section of a portion of this region is inserted. 

Antbracite Co»l Beds in Folded Strata, Schn^lkill Co., PennaylvftDU 
(Eocy. Brit). 

Sindi of Coal. — It is enough for our purpose to know that ttw 
various classes or kinds of coal, commercially considered, are 
determined principally by the amount of volatile matter which 
tliey contain, and that there is less and less of this a<jcording to 
the degree of heat and pressure to which they havit been sub- 
jected, or usually according to the age of the deposit. 

Coal varies from rotting vegetation or, by further alteration, 
peat, at one end of the series, to graphite, or so-called " black 
lead," at the other end of the series, according to the degree of 
metamorphism to which it has been subjected. This is often 
determined by the age of the coal, but not always, as local in- 
fluences, such as slow heat, like that produced by unusual com- 
pression, or more rarely heat from volcanic sources, may have 
assisted in altering the character of the coal. The original 
chemical composition of the coal itself may possibly liave con- 
tributed somewhat to this result. Generally speaking, however, 
the oldest coal has been subjected to the greatest amount of 
change, and the youngest to the least amount. We have coal 
varying from peat to peaty lignite, or brown coal (always of very 
modem origin), then to true or black lignite. From the Intter we 
find the lignite grading into bituminous coal, until we reach the 
tme bituminous coal. From the bituminous we find it grading 


into anthracite. The anthracites themselves vary greatly in their 
composition and in the amount of volatile matter which remains 
in the coaL As more and more of this volatile matter is driven 
off wo find, as in the other grades, even the anthracite gradually 
becoming more and more graphitic in character, — like the coal , 
of Rhode Island, for example, — until we finally arrive at pure 
graphite. The latter is usually found only in the oldest known 
sedimentary rocks. 

Of course coals vary greatly one from the other in the matter 
of purity. Some of them contain little or nothing outside of that 
contained by the original vegetable matter, to the decomposition 
of which they owe their origin. On the other hand, some are 
found Containing great quantities of sand and mud, which were 
washed into or over the peat swamps forming, as is usually 
thought and has been pointed out, near the mouth of some broad 
river emptying into an arm of the sea. This sand or mud has of 
course remained in the coal ever since. Iron and sulphur are 
frequently found in coal, forming, when combined, iron pyrites, 
and affecting its value greatly. The lawyer, however, is con- 
4)erned mort^ with the geological or physical peculiarities of sudi 
a deposit ; that is to say, its mode of occurrence, its general form, 
And its extent. As has already been stated, a single bed — espe- 
dldly when the strata are horizontal or nearly so — is often exten-^ 
sive over a tety large area, many square miles in extent. It is 
found close to the surface or at very great depths below it, accord- 
ing to the present topographical conditions of the country, — that 
lis, according to the amount and extent of erosion, — or accord-* 
i¥ig to the position of the strata in wliich it is included, or very 
often according to what is called the dip or inclination of tho 
same. This can be readily understood by reference to the dia- 
grams. In this connection the effect of erosion, which has carried 
away large areas of coal beds, along with portions of the strata 
which contain them, is also to be noted. As already stated, beds 
of coal vary in thickness from a few inches or a mere band to a 
number of feet, but the seams which are usually worked in this 
country vary from three feet or a little less to eleven or twelve 
feet. Sometimes, however, they greatly exceed this thickness. 
A coal bed does not always maintain its thickness, but is fre- 
quently found to be much tliinner at some places than at others. 
In this respect, nevertheless, it furnishes a great exception to 


most other mineral deposits, as it is much more regular and 
more nearly maintains its thiclcness than any other class of 
deposits. ^ 

It is to be noted in this connection that a deposit of coal is 
properly referred to as a coal bed or coal seam, and not a coal 
rein. As will be seen hereafter, a vein usually presupposes an 
original break or rift — often an old fault — in the rocks, through 
which crack, mineralized waters have subsequently made their 
ascent. An accumulation of peaty material, however, being more 
or less a sedimentary deposit, is properly i*ef erred to as a bed, 
in the way we speak of a bed of sandstone, or bed of shale* of 
bed of limestone. Indeed we often have coaly (carbonaceous or 
bitaminoos) shales, or ^ black slate,'' as it is commonly called by 
the miners, containing, we will say, five per cent combustible 
matter and ninety-five per cent ash, which means simply that a 
little peaty or vegetable matter got mixed with the mud at the 
time the latter was deposited. 

Aspbalt. — This is a curious mineral, the origin of which is not 
at all well understood. It is supposed, however, that it is derived 
from certain kinds of organic matter in salt water, — not fresh or 
brackish water, like coal, — whether vegetable or animal, or both, 
it makes little difference. It is a significant fact that it is always 
found in connection with sedimentary fossiliferous rocks, — from 
Paksozoic up to Tertiary, — and it is this which gives rise to the 
supposition that it has its origin in some kind of marine life, the 
structure of which may have been sucli as to leave no other evit 
denco of its existence. It is a black tarry substance, with the 
peculiar odor of bitumen. Asphalt sometimes is found forming 
great pools or lakes, which in some cases have probably exuded 
from the inferior or adjoining rocks. An example of a deposit 
of this kind is the famous pitch lake on the island of Trinidad. 
More frequently it is .found impregnating or satiiratino: certain 
rocks, but only those of sedimentary origin ; that is, either lime- 
stones, sandstones, or shales. In some cases it is found impreg- 
nating a portion of a coal bed, and the so-called cannel coal is 
supposed by some to owe its extremely bituminous nature to an 
admixture with the coal seams of the organic material from which 
asphalt has been produced. 

In Kentucky, Indian Territory, Utah, and California there are 
quite thick strata which are in places heavily impregnated with 


this asphalt or bitumen. In some of these areas, where there are 
crevices or cracks in the rock, these crevices are filled with this 
bituminous substange or asphalt (Utah and California). Accord- 
ing to the amount of oxygenation which this substance has 
undergone in these cracks it has given rise to many different 
but kindred minerals, the principal among which are dlhertite 
(Nova Scotia), grahamite (West Virginia), giUonUe and ozokerite 

Asphalt itself seems to be the residue of the distillation of 
the more volatile oils, or it may be that these oils have by 
some metamorphic agencies (heat, pressure, etc.) been con- 
verted into it. It is very variable in composition, and is usually 
mixed with extraneous material. With the exception of the lake 
of Trinidad mentioned, and some deposits in Venezuela, — where 
it is found in a very pure condition relatively speaking, and is 
dipped up, put into barrels, and shipped away in the crude state, — 
it is usually mined in connection with the rock which contains it, 
and it is used for paving material in this condition. This crude 
material, however, is usually refined. Very rarely it is found 
forming what seems to be a coal bed, so absolutely stratified is it, 
and so comparatively free from impurities. This occurrence is, 
however, rare, and when seen, such a deposit is usually found to 
become, in a short distance, more and more admixed with the 
material forming the adjacent rocks. 

With regard to its mode of occurrence, therefore, it is only 
necessary to remember that it is usually found impregnating, 
satiu*ating, or admixed with the material which forms some- sedi* 
mentary stratum, and is never found in eruptive rocks, in which 
respect it is like coal, though differing from it widely in others. 
In Kentucky, Indian Territory, Utah, and California these strata 
are sandstones, while the chief asphalt deposits in Europe are in 
limestone. The veins or crevices in which the kindred minerals 
(o^ilsonitc, etc.) above mentioned are found in Utah, California, 
West Virginia, and Nova Scotia would probably be classed in a 
legal sense, as they would certainly be in a geological sense, 
as true fissure veins, although they do not contain any metallic 
minerals. As those upon government landij are principally found 
upon land which is now included in Indian Reservations, the ques* 
tion as to their legal classification has not yet arisen; but upon 
the lines of reasoning followed by our courts with regard to recog- 


aizing the geological or pbyaical differences between the rarious 
classes of valuable mineral deposits, and basing important legal 
distinctions upon these, rather than upon the chemical or mineral- 
ogical differences of the substances contained in the deposit, it is 
suggested that since these minerals are found filling true fissures, 
tlie deposit would properly be located as a ** lode," and what is 
known as the law of the apex would rule.' 

Mode of Occonence of InwrUmified DeposiU of Asphalt. 

&. — Petroleum, or mineral oil, is as much a mineral in 
a legal sense as though it were of a metallic nature. Its origin is 
quite certainly more or less similar to that of asphalt, and prob- 
ably it and its kindred substances represent the more volatile 
oils, which either bare been distilled off of the original deposit 
of bituminous material contained in shales, limestones, and annd- 
stones, leaving the heavier material (asphaltum) behind, or which, 
when subjected to metamorphic influences, were converted into 
it. It is often found in or above rocks which contain the deposits 
of asphalt; that is to say, the two belong to the same series of 
strata, or approximately so. In fact, it is supposed by some that 
many of the deposits of asphaltic sandstone and limestone, or 
other rocks with which this substance is admixed, simply repre- 
sent what is left of the original material, whatever it may have 
been, after vast quantities of petroleum and the more volatile 
oils and gases have escaped. Others contend that these asphalt 
deposits simply represent in themselves old oil poolt converted 
into asphalt by being exposed to the atmosphere or other oxygen- 
ating influences. 

If the former theory is the correct one, as is probable, these 
asphaltic deposits, if they are now in the condition of asphalt, arc 

' In the wribtr*! opinioD tbU view Jocb not ronflict witli the opinion of Secretary 
Tdlet, 1 L. D. Ml. 


to be found perhaps several thousand feet below the present sur- 
face, that is, considerably below the present oil-bearing strata ; 
and the more volatile substances (petroleum and natural gas^, 
owing to the heat produced by the blanketing effect of the super- 
imposed sediments, or for any other reason, have escaped from 
this, their original source of bituminous material, and ascended 
until their further progress was checked by some impervious stra- 
tum. This is usually some bed of clay or slate (shale), or what has 
produced the same effect, the so-called ^' shell " of closely cemented 
grit or other dense impervious material. In this way the oil and 
the gas which accompanies it have usually collected, and often in 
great quantities, in the open-textured or porous sandstones and 
grits beneath this stratum, but are not found In the other rocka 
of the series which are more dense. The latter are principally 
shales and fine-grained sandstones. It is, however, found in great 
quantities in limestone beds, but only where the surrounding con- 
ditions have made this a suitable repository. In this connection 
it should be . remarked that oil, like water, is found only in rocks 
which are porous or contain fissures and cavities, great or small, 
i. e. sandstones or limestones. Conversely, the rocks which, like 
shales, are not water-bearing in a general sense are not oil- 

It must not be supposed that the oil generally occupies great or 
small subterranean cavities, although possibly it may rarely be 
found doing so, as in limestone. It usually occurs in nature 
as simply occupying the spaces or interstices or so-called pores 
between little pebbles and grains of sand in^ some rather open- 
textured but not necessarily incompact rock, or now and then 
is collected in the fissures and cavities of such rocks. Its source 
is quite certainly below the point at which it is at present found, 
because it will usually ascend and escape through any outlet it 
may find, owing to the elasticity of the accompanying gas. When 
there is a gentle roll or anticlinal fold or "saddle" in the strata, 
oil and gas are often found occupying, though very irregularly, 
positions in the crest of this fold underneath the impervious stra- 
tum. It does not seem to be found in large quantities in strongly 
folded strata, owing to the fact that the metamorphic agencies 
which caused the folding and tilting of the rocks have either con- 
verted the lighter oils into the more solid asphalt, or, as is more 
likely, the upturned and eroded strata have afforded these light 


oils a good opportunity to escape. When the rocks, however, are 
lying level it is infipossible to tell where it will be found, except 
to say generally that if found at all it is likely to be met with in 
certain oil-bearing strata. The random drilling of exploratory 
holes is the only way to test such a region. The depths at which 
it is found in this country usually vary from five or six hundred 
feet to very often upward of three thousand feet. The sinking 
of a new oil well in a soKsalled '^ pool " often interferes with the 
production of a previously existing well in close proximity to it. 
These so-called pools in the oil-bearing sandstones or so-called 
** sands'' are simply localized areas of oil-bearing territory in 
certain and, by experience, well-recognized strata, usually sand- 
stones or grits, as in Pennsylvania and Oalifomia. They may 
be found, however, in the fossiliferous strata of any age, from 
Silurian (in Ohio) to Devonian, Sub-carboniferous and Carbon- 
iferous in Canada, Pennsylvania, West Virginia, etc.; Tertiary 
in Russia. It is sometimes found in limestone, which in Ohio 
has been the chief oil-producing rock. These pools are most 
irregular and indefinite in shape, no two being alike. When 
broadly considered, they are often found to have a certain trend 
or definite direction across the territory in which they are found, 
involving in some cases a number of States. Accompanying oil 
and natural gas, and in the same rocks in which they are con* 
tained, large quantities of salt water are frequently found. It is 
not necessary here to go into further geological explanation of 
these facts.^ 

Ratona Gtes. -*- As intimated in the preceding description of oil 
deposits, natural gas is only another product of the same sub- 
stance which has produced both asphalt and petroleum, whatever 
that substance or source may have been. It simply represents 
the mo$t volatile portions of such substances, — the heavier having 
been converted, as is supposed, into bitumen, — which volatile por- 
tions have been driven off by the agencies above referred to. It 
18 always found on top of the oil when immediately associated 
with it, but sometimes it is found isolated and far beneath 
the oil-producing strata in the vicinity. This is simply due to 
the fact that it was checked at this point in its upward course 
and collected there. Give it a chance, and it will always rise 

^ By act of CongneB, Febmary 11, 1897, petiolenm landB must be located as 
^■wi eiaim$. 


above the oil, being more volatile. While not a mineral in a 
mineralogical sense, it is so considered in law. For in a general 
legal sense any valuable inert or lifeless substance formed or de- 
posited in its present position through natural agencies alone^ and 
which is found either in or upon the soil of the earth or in the rocks 
beneath the soil^ is a mineral. With a number of exceptions — 
such as coal, graphite, limestone, infusorial earth, asplialt, pe- 
troleum and natural gas, phosphate rock, guano, nitrate of soda, 
amber (fossil resin), etc. — these substances are of inorganic 
origin. The above definition is of course not a definition of the 
term as used in geology or mineralogy, but only as used in law 
and in commerce. 

Sulphur. — This is a non-metallic mineral which has great com- 
mercial importance. Its principal occurrence in nature is either 
in the form of native sulphur or of a mineral known as iron 
pyrites ; that is, a combination of sulphur and iron. 

Native sulphur is found in large quantities in the neighborhood 
of extinct volcanoes or in craters of the volcanoes themselves, 
such as in the crater of Popocatepetl, etc. There are many 
deposits of it in the Andes, and in Mexico and in Sicily ; but* it 
is also found in this country, as, for example, in Nevada, Utah, 
Yellowstone Park, and elsewhere, but always in very irregular 
superficial deposits. It is nearly always impure, that is, admixed 
with extraneous matter. 

Iron pyrites, however, is a very different substance, and is a 
glistening yellowish mineral, which has been formed in the great 
majority of cases from the contemporaneous deposition and union 
of sulphur and iron solutions in presumably ascending hot alka- 
line watei*s or possibly vapors. This has been deposited in vast 
quantities in rifts or breaks in the rocky crust, and in other 
places in it suitable for the deposition of such mineral solu- 
tions. It is very often found in pockets or seams in limestones 
near eruptive rocks, or at the contact between these eruptive 
rocks and the limestone, or some other rock, through which the 
eruptive rock when in a molten condition came up. Pyrites is 
mined in great quantities in Spain, Portugal, Newfoundland, and 
in the United States, but, for matter of that, all over the world, 
principally, however, for the other metals which may be associ- 
ated with it, such as gold, silver, copper, nickel, etc., and whicli 
will be considered hereafter. It is a most important mineral, 


and of verv common occurrence in nature. For these reasons 
it will be referred to again under its proper classification as 
one of the metallic minerals. It is referred to at this time only 
because large quantities of sulphuric acid are manufactured 
from it. 

Phosphate Rock. — This is a very peculiar mineral, which is 
found in large quantities along the Atlantic border of the United 
States. Its chief use is in the manufacture of fertilizers. A 
mineral known as apatite, find which is largely composed of phos* 
phate of lime, was formerly extensively mined in Canada, but 
owing to the discoveries in Florida of large deposits of so-called 
^* high grade " phosphate rock it has ceased to be mined on a 
large scale. 

The common variety of phosphate rock occurs in irregular 
superficial beds or as water-worn fragments or pebbles, the latter 
having very probably become detached from these irregular de- 
posits, and sometimes carried great distances from their original 
source, by the action of the sea or rivers. Along with these 
phosphatic nodules or fragments there are found great numbers 
of fossil bones of many species, fossil teeth, etc., which have 
often been enriched by phosphate of lime, so that they now con- 
tain much more of this substance than originally. 

The theory which probably contains most truth with regard 
to the origin of these deposits is that they are due to immense 
ancient deposits of guano, or other remains or accumulations, 
derived from various forms of animal life, and which contained 
large quantities of phosphate of lime ; as, for example, guano and 
the bones of animals are known to do. These deposits, whatever 
may have been their exact nature, are known to have been of 
great magnitude in Tertiary times, owing to the very great 
abundance of animal and especially of bird life, the latter favor- 
ing the theory of guano as the chief factor in producing the 
present material. According to this theory, when guano accu- 
mulated on a coral reef or on an exposed portion of a bed of lime- 
stone, the slow action of rain water falling upon it, or other 
phosphatic material, caused some of the soluble phosphates to be 
carried down and to be redeposited in the limestone or marl 
beneath. That is to say, such slightly acidulated water would 
readily take into solution the carbonate of lime, forming by far 
the greater part of the limestone, and leave behind its previous 


load of phoBphate of lime. lu this way the process of substitutioiiy 
or what is known as pseudomorphism or replaeementy has taken 
place. Original fossil shells (carbonate of lime) are often met 
with which have been accurately replaced by phosphate of lime, 
so that they now contain a large percentage of the latter. This 
can be proved to have taken place in a great many instances, and 
it is doubtless as good a solution of the problem of the origin of 
these deposits as any which has yet been offered. 

It is readily seen that these deposits are apt to be very super- 
iiciaU unless covered by later sediments, and very irregular in 
shape. Most of them which have been worked, as in Florida, are 
of comparatively recent origin in a geological sense (Tertiary). 
Deposits of somewhat similar material have, however, been 
recently found in Devonian strata in Tennessee. 

That great quantities of pebbles of phosphate fock are found, 
as, for example, in the southern portion of Florida, is owing to the 
fact that they are very insoluble ; and when once a fragment of 
this substance has been detached from its original source, it could 
be carried many miles by ocean currents or by rivers, but wuiild 
lose little or nothing except by attrition, simply becoming water- 
worn like any other pebble which is with difficulty soluble, like 
those of quartz, which are often found with the phosphate pebbles. 
These phosphate pebbles have been distributed over considerable 
areas, and subsequently collected in the rivers which traverse 
these areas, having obeyed the laws which govern the distri- 
bution of any other pebbles. In fact, the autlior sees no reason 
why they should be regarded as differing materially from any 
other pebble in their mode of origin, except as above stated. 
It is possible that the very irregular shape of some of the 
so-called ^Miodules/' such as those which are found in South 
Carolina, for example, can be explained by the irregularity of the 
superficial replacement of the original limestone rock or perhaps 
marl. When small fragments were subsequently detached from 
such a deposit, the portions of such a fragment which contained 
a large quantity of phosphate of lime would remain, while the 
other portions, containing chiefly carbonate of lime, would be dis- 
solved away. On the other hand, they sometimes show a distinct 
concretionary structure, when, of course, their origin must hare 
been in the main like that of other concretions, — merely a seg- 
regation of the minute particles of lime phosphate, ori^ally 


diffused throughout portions of certain strata, until an irregular 
concretionary nodule was formed. 

dmj Deposits. — As will hereafter be seen, aluminum and alum 
are not extracted from the kinds of clay which are commonly met 
with^ since they are not commercially suitable for the purpose, 
but, as is well known, many clay deposits, which would not be 
suitable for the manufacture of aluminum or of alum, are exten- 
sively mined and are used for other purposes, such as making 
brick, cement, pottery, etc. These beds of clay are often due 
to the superficial disintegration of the underlying rocks, when 
they are regarded simply as soil. Very frequently, however, 
they form distinctly stratified beds, as, for example, in the coal 
measures, where they are found immediately associated witii 
and very often underlying the coal seams. These deposits are 
known by the name of fire day^ since the material is used for 
making fire brick. Very pure deposits are used for making 
pottery, and especially the unctuous material which is known 
as kaolin^ which is simply a very pure form of clay, largely 
derived, it is supposed, from the disintegration of the mineral 

No matter to what such deposits of clay may owe tlieir com* 
mercial value, it is clearly seen that they must necessarily fall 
within the legal classification of stratified deposits, and witliin the 
operation of the law which is applicable to such deposits. In the 
case of clay deposits or clay seams accompanying coal seams, 
they present no important points of difference in their mode of 
occurrence and stratified character from the latter, and necessa- 
rily the same legal reasoning must be applied to them, except so 
far as modified by statute. 

Salt. — Salt^ or chloride of sodium, is a mineral — partly metal- 
lic in its nature, but not popularly so considered — which is very 
extensively mined in different parts of the world, and in some 
cases it is found in a very pure condition. It is always found 
occupying distinctly stratified beds, the exact origin of which is 
in some cases rather obscure, but it is sufficient to sav that it has 
certainly been derived from the sea or salt lakes. That is to 8ay, 
the deposits of rock salt probably originated on the sea bottom, or 
rather at the bottom of an enclosed lagoon which was filled with 
iea water at the spring tides or at other seasons, evaporation 
»fterward taking place, leaving the salt behind. In many caises, 


probably in most cases, they were, however, certainly formed in 
much tlie same way from the gradual drying up of salt lakes, 
leaving behind a heavy deposit of salt, admixed with impurities. 
These beds, now covered by many feet — hundreds or even thou- 
sands — of subsequent sediment (now rock), are often mined, after 
being reached by a shaft, by the method practised at Salzburg, 
Austria, of being flooded with water, making a saturated salt 
solution, pumping the same up to the surface and afterward evap- 
orating the water. There are a great many mines of salt in the 
United States, as, for example, in New York, Michigan, Wisconsin, 
Kansas, Louisiana, etc. ; but the beds which contain it, though 
they may be deeply buried, are so distinctly stratified that they 
do not need further description here. 

QypBum. — This is a mineral — composed of the combination of 
lime, sulphuric acid, and water — which is quite extensively used 
in the arts, and somewhat in agriculture. When very pure and 
massive, it is termed alabaster. It is used to make plaster of 
Paris and artificial marble. It has also other minor uses, but it 
is not necessary to discuss them here. 

Gypsum generally occurs in quite extensive, though somewhat 
irregular, deposits, which are usually interstratified or ^associated 
with calcareous and argillaceous rocks. It is very often asso- 
ciated with the deposits of rock salt already described, but it is 
also frequently found where sulphuric acid, generated by the de- 
composition of pyrites, has had an opportunity to affect adjacent 
limestone. Being, however, usually in stratified beds, and of 
marine origin like salt, and very often in superficial deposits, 
it will be placed in the same category. There is nothintr in 
its mode of occurrence to take it out of the class which for 
convenience is referred to as Stratified Deposits, and wliercver 
found on government lands it should, be so considered and so 

Potash. — The metal potassium is rarely produced, but in tlio 
form of its salts it is of great importance in the arts. Potash, 
though produced artificially on quite a large scale, is also, at pres- 
ent, largely derived from certain irregularly stratified deposits 
of a saline nature, the most notable of which are in Germany, 
at Stassfurt. It is very abundant in nature, since it composes, 
for instance, a part of the mineral feldspar, a very common rock 
constituent. It is also found in other minerals and in sea water. 


The occurreDce of feldspar, as well as its appearance, is somewhat 
like that of quartz, and like it, though most frequently met with 
as a rock constituent,^ is often found in segregated masses and 
in small veins, especially in gneissoid or granitic regions. How- 
ever, potash is not derived from this mineral, common as it is, 
because, owing to its association with silica, it is too expensive to 
recover it. When not produced by ordinary means, it is usually 
derived from tlie above-mentioned salt deposits with which it is 
associated, and which contain little or no silica. 

Generally speaking, it may be said that the deposits in nature 
from which it is derived would be regarded legally as being 
stratified, according to the classification which has been adopted 
in this book. 

Alum. — This 18 a useful mineral, which, though partly com- 
posed of a metal (aluminum), is not popularly regarded as metal- 
lic. It is, like salt, a mineral which is valuable in itself and not 
because of the metal which it contains, or in order to recove-* 
which it is mined and treated. Large deposits of impure alum, 
relatively speaking, are found in the western United States. It 
usually occurs as a very irregular deposit, but sometimes it is 
quite distinctly stratified. It is simply a hydrous sulphate of 
aluminum with an alkali metal (potassium or sodium) added. The 
potash alum seems to be more common in nature than the soda 
alum. Instead of forming a massive bed, alum is sometimes 
found in a mealy condition or as an efflorescent crust. A great 
inany shales contain large amounts of alum, and are known as 
alum shales. These shales are simply original mud deposits, 
and therefore they, or any beds of alum, must be regarded as 
distinctly stratified deposits. The impurities are usually mag- 
nesium, manganese, iron, etc. 

The purer alums of commerce are now largely manufactured 
from the mineral bauxite^ from which aluminum is also produced, 
and which will be referred to hereafter. (See description as to 
mode of occurrence, etc., under Aluminunt). This mineral when 
found upon government land should be legally classed as strati- 
fied, land, owing to the superficial though pockety nature of the 
deposits in which it is found, should usually be located as a 
placer claim. Though formerly imported from France and Ire« 

1 The miueralB quarts, feldspar, and mica compoee granite. 


land, it has been found; and is quite largely mined, in (reorgia and 

Silioa or Qaarts. — The Bilica for making glass, etc., is largely 
obtained by using common wliite sand, — which is nothing, after 
all, but very minute, rounded, water-worn grains or minute pebbles 
of quartz, — although sometimes great veins or segregated masses 
of quartz are mined for this purpose, as well as certain quartzose 
strata. Quartz is used with feldspar, which frequently occurs in 
nature in a somewhat similar way, t. e. in veins and in segregated 
masses, for making pottery as well as in making ordinary varieties 
of glass. As has been mentioned, the close combination of quartz, 
feldspar, and mica make the common eruptive rock granite. 
Quartz is the most common of the various veinstones, which arc 
mined in connection with the valuable metals which they contain 
(gold, silver, etc.), and which will be treated of hereafter. 

Agate and Chalcedony of various kinds are other forms of 
quartz which are mined and shipped for commercial purposes. 

So-called Petrified Wood is quartz or silicious matter which, 
originally contained in solution in water, has replaced witli 
microscopic exactness the vegetable fibre of old trunks of trees, 
etc., surrounded by and soaked with these silicious and, in many 
cases, probably hot waters. 

Infusorial Earth or Tripolite is silicious matter which has been 
formed from the accumulations of billions of silicious carcasses of 
microscopic life-forms upon the sea floor. Sometimes strata of 
very considerable thickness are known to have been formed in 
this way, but apparently such strata are of late Tertiary origin. 
(See page liii.) As has been suggested, some of the geologically 
old chert or flint beds and other extremely silicious strata of 
great age may have had a somewhat similar origin, thonjcrh 
they are now generally supposed to have been formed by the 
accumulations of very finely divided silicious sediment (exces- 
sively minute grains of sand or quartz) deposited far from the 

Borax. — This is a mineral which occurs rather sparingly, though 
it is considerably used in the arts, and as there are some deposits 

> Ammonia alam, instead of existing of potash alam. This leaves deposits of 

in a crude state in nature, is now exten- bauxite and of soda alum as the only 

sively manufactured from the waste of ones which possess commercial impor- 

gas works, and hM fatigolj taken the place taace. 


of it in America (Nevada, California, etc.), it is woi'tb passing 
reference. It is usually found mixed with impurities upon old 
lake bottoms or around the edges of present or recent lakes, in 
very irregular deposits. It is therefore, according to the classi- 
fication adopted, superficial and stratified. 

Many of the other non-metallic minerals, or those which are 
popularly so considered^ are not mentioned here, owing to the 
fact that they have not yet been discovered in the United States 
in sufficient quantities to possess very great commercial impor- 
tance. Some of the following* — like salt, potash, and alum, — are 
really metallic in their nature, that is, partly composed of a metal ; 
but as they are not commonly so regarded, and are valuable 
in themBelTes and not for the metal they contain, they have 
been purposely placed under the general head of non-metallic 

Nitrate of Soda (Chile saltpetre) is one of these. Chile enjoys 
the practical monopoly of the production of this valuable ma- 
terial: It is chiefly used in the manufacture of fertilizers, but is 
also nsed in the manufacture of nitric acid, and to a certain 
extent in that of gunpowder. For the latter purpose the soda is 
eliminated and potash substituted, making nitrate of potash, or 
common saltpetre. Nitrate beds, though of irregular exteut and 
occurrence, arc; very distinctly stratified marine or salt-lake de- 
posits, and would, of course, if found in this country, be regarded 
in the same light legally as all other stratified deposits. 

The supply of Iodine of the world is derived from treatin<]r the 
substance (caliche) from which nitrate of soda is obtained. The 
crude substance contains extremely small percentages of iodine, 
but sufficient to make it profitable to reclaim it, as it brings a high 
price, and the consumption is comparatively small. 

Fluor-spar and Calc^par (veinstones like quartz) are largely 
used as fluxes, especially in Europe. Fluor-spar is produced in 
very small quantities in the Mississippi valley. It is for certain 
purposes the best a^ilable flux known, and both it and calc-spar, 
like quartz, are usually found in cracks or so-called veins, pro- 
duced by previous fracturing of the rocks. They are also found 
forming so-called pockets in limestone as well as in the cracks of 
this rock, replacing portions of it which had been previously 
leached out and removed by tlie dissolving influences of 


Deposits of Fvller^s Earthy Soap%tone^ Mica^ and A8he%to% come 
under this same general division, but a detailed description of 
their mode of occurrence is not considered necessary. Mica 
often occurs in bunches or nests in dikes of very coarse granite, 
or sometimes in granular limestone, and is also associated with 
apatite in Laurentian rocks in Canada. Asbestos is often found 
filling small cracks in serpentine. (See Stoekwork.) 

(b.) Stratified Metallic Minerals^ or those minerals which contain 
a metal or metals^ for the extraction of which they are mined and 
worked^ and yet occur in nature in a more or less stratified 

Iron. — Commercially considered, the most important under 
this head are, perhaps, the minerals from which metallic iron is 
extracted. It is not found in nature in its native or metallic 
state, at least, except in small specimens, which are mineralogical 
curiosities. Many of these are meteoric in origin. 

The iron deposits of the world are of two great classes : first, 
those which were deposited as original sediments or beds, — 
usually by chemical action, — upon sea, lake, or marsh bottoms ; 
and, secondly, those which have been derived from the oxidation 
of great masses of iron pyrites.^ 

(d.) Deposits of the first class are often as simple in their mode 
of origin and as easy to understand as deposits of coal, or those of 
fire clay. Very frequently they are quite as extensive as the 
latter, and sometimes a small stratum of iron ore, not more than 
a foot or two in thickness, will be found to exist over many square 
miles. When mixed with carbonaceous material it is known as 
black-band ore. Much of the ore of Scotland is of this descrip- 
tion. These stratified iron-ore deposits have been formed through 
all geological times, but seem to have been more generally depos- 
ited in the Silurian up to the Carboniferous eras, although many 
similar beds were deposited in late Tertiary times, as, for exam- 
{)le, in Texas. The iron was deposited or precipitated probably 
in the original form of carbonate ; but where it has been exposed 
or brought to the surface by the action of erosion, it has always 

1 Masses of iron oxide or ordinary iron relatively speaking. Carbonate of iron, 

ore are sometimes dae to the oxidation of or spathic iron ore, as it is often called, is 

the mineral siderite or carbonate of iron, nevertheless quite extensively mined in 

These are, however, of smaU importance, some parts of the world. 



been converted into oxide of iron, usually the bydrated form, 
which is known as brown hematite ore. These deposits are fre- 
quently very impure, owiijg to the commingling of sedimentary 
material of different kinds, which was often deposited at the 
time that the iron was chemically precipitated from the water 
containing it in solution. 

showing roughly the Mode of Occnrrenoe of Lron Ore in Michigan 

' (Emmons). 

The great supply of iron is not drawn from these sources, how- 
ever, but from the deposits of magnetic and specular ore which 
are found usually in the so-called metamorphic or crystalline 
rocks of great age. Whether these were originally great masses 
of iron pyrites which became subsequently oxidized, or whether 
they were due to tremendous deposits of iron, originating in 
much the same way as has been explained, in the remote ages 
when the rocks, with which they are associated, were formed, is 
yet in many cases an open question. It would seem, however, • 
that the latter is very much more frequently the case than the 
former, as, although often more or less lenticular in form, the ore 
bodies are usually distinctly interstratified or interbedded. It 
has also been suggested, owing to the noticeable paucity of 
iron in the adjacent rocks, that in «ome way the iron has been 
leached out of these rocks and segregated in the irregular len- 
ticular masses which we now mine. While it is entirely possible 
that this may have occurred, it is very difficult of explanation. 
This much is certain, however, no matter what their origin may 
have been, they have often, if not always, been very greatly en- 
riched superficially, and in very recent geological times, by the 
downward percolation of meteoric or surface waters, taking some 
of the iron contained in the exposed upturned edge of the stratum 
into solution, and redepositing this iron with the other iron 
below. In order to do this, they have often effected the process 
of replacement by substituting the iron for some rock below 
with which the original deposit was associated, in this way add^ 
ing greatly to the purity of the ore. That is to say, in the 


extremely gradual proceBS of erosion the surface waters have 
been for ages constantly dissolving and removing this rock, and 
depositing in its place the iron which they derived from the upper 
portions of the iron-bearing stratum. It is simply another exam- 
ple of the process of replacement or substitution already described, 
and which, as we shall see, has played an important part in form- 
ing and enrichuig many of the metalliferous and other valuable 
deposits worked by man. The famous Mesabi Range of Minne^ 
seta, and mines in other districts in the Lake Superior region^ 
furnish examples where this can be proved to have taken place on 
a huge scale. 

Sometimes these masses of iron ore^ especially when contained 
in the older rocks, are several- hundred feet in thickness, and 
hare great longitudinal extension. Tlie ore usually varies from 
a pure magnetic oxide or magnetitey to what is known as a specu- 
lar ore^ or red hematite, or admixtures of these varieties. The 
latter (red hematite) is sometimes soft and sometimes hard^ 
btit more frequently hard. Often portions of these deposits, and 
especially deposits of the class to which reference will presently 
be made, are what is known as brown hematite^ or limonite (from 
himon^ a meadow). Brown hematite ore is the chief ore of the 
aotithem United States, and in some cases seems to be due to the 
oxidation of an original carbonate ore.^ In the great majority of 
cases in the southern United States this ore, as well as the so- 
called '^ fossiliferous " ore (impure red hematite), is found in 
rather irregular stratified deposits ; but doubtless many of these 
deposits, like other iron deposits, have been enriched in the way 
above referred to. 

(5.) Deposits of the second class are those where the iron ore is 
simply and certainly due to the oxidation of original iron pyrites, 
to which mineral reference has already been made under the head 
of sulphur. This iron pyrites, when subjected to the oxidizing 
influence of the atmosphere and of surface waters, loses its sul- 
phur and becomes oxide of iron, that is, ordinary iron ore. This 
may "be a hyd rated oxide, or by heat and by pressure, or other 
causes, the water may have been driven off, leaving it in the form 
of either magnetic or specular iron ore. A very considerable 
number of the iron deposits of the world are of this character, 
but in many, oxidation has proceeded to such a depth that mining 

* It also frequently represents the oxidation of iron pyrites. 


has not yet developed the absolutely unaltered iron pjrites, al- 
though this miueral often increases in abundauce as depth is 
attained. For example, there ia a huge cap of iron ore on the 
famous deposit of iron pyrites at Rio Tinto, Spain. Examples 
c^ this kind are more or less common throughout the Rocky 
Hoaotaia region. Undoubtedly many deposits of brown hematite, 
r»d hematite, and of tnaffnetic iron ore, some of great magnitude, 
are of this class.' 

Iron ore in its legal aspect is interesting, especially in the 
vestem United States ; for in the eastern portion of the country, 
as will be seen hereafter, it matters little what the kind of deposit 
may be, owing to the fact that the common law rules that a man 
owns — where there has been no severance of the mineral estate 
from the ownership of the soil — all that may be found within 
his boundary lines extended vertically downward. It has, bow- 
ever, never been judicially decided whether an iroD ore deposit 
Taluable for no other metal which it may contain, should be 
located as a lode or placer deposit when opon government lands. 
Where it is certainly due to the oxidation of masses of original 
iron pyrites Riling crevices or collected along some line of con- 
tact, as between an eruptive rock and limestone, and especially 
when it carries some other valuable metals, it would certainly 
seem that, if it it sufficiently continuovi, it should be properly 
located as a lode claim, and not as a placer claim. 

The following diagrams will illustrate very roughly the usual 
manner of- occurrence of iron ore and make it more easy to under* 
stand the above distinctions. 

it ot Iron Ore DopoiiitB, Michigan 

' These three orea when chemically metallic iron. It ia ver^ high (trade or« 

pan — that ie. when the iron rontained of either clnss that ihowii  perrentage 

■• tbem ii nnited oalj with oxjgeo. mliich six or neven nnitu leu than the puMibiUciet 

/tit/ II never met wilh — can respertJTely mentioned. 
va»in 9V.8, TO, and 72^ per cent of 


Occnrreace of more or lera Stratified and Pocketj — or Inegnlar — Iioii On 

ceTtainlj dae to 

ManKaneM. — The principal use of this quite important metal is 
in the manufacture of steel. 

It is derived principally from two ores, — oxide of manganese 
and carbonate of manganese. These ores, especially the former, 
occur quite abundantly in nature, although nothing like to the 
same extent as iron. 

Tlie chief supply of manganese is drawn from perfectly strati- 
fied sedimentary bods, as in Chile, Russia, Cuba, etc., although in 
the United States its occurrence is very much more jiockety. In 
liiis country it is chiefly found in beds of clay resulting from the 
di.tintegration of some certain kind of rock, which may be either 
original sandstone, as in Virginia, or limestone, as in Arkansas. 
It is chiefly found in irregular maBScs varying from less than an 
ounce to mimy tons in weight There is, however, every reason 
to believe that tlic manganese was in the original rock which has 
dissolved into clay; that is to say. when this rock rotted into 
clay the manganese ore reuiaiued in the latter in some cases in 
somewhat the same position as it was originally deposited in the 
sedimentary material which was afterward consolidated into hard 


rock. But it is much more probable, in the majoritj of cases, 
that what has been referred to aa the process of superficial enrich- 
ment may have taken place in the majority of tliese deposits in 
Kmewhat the same manner as in the iron ore deposits which have 
already been described, so that these nodular masses of man- 
gsDese ore in the clay represent the legregatton of this material, 
the rock which originally contained it having contained it in a 
much more disseminated condition. These masses are therefore 
much larger and more abundant than they would have been 

The ore is usually confined to a certain stratum or certain 
strata in a series of sedimentary rocks, and it adheres to these 
strata with great pertinacity. This is simply due to the fact that 
the conditions for the deposition or precipitation of manganese 
ore were present when these particular sediments were deposited, 
and were not present when either the older or younger sediments 
were deposited. ' Whether the ore was originally deposited in the 
form of a carbonate or as an oxide is not proveni though many 
think that, as in the case of some iron ores, it was originally 
deposited in the form of a carbonate and has been subsequently 
changed to an oxide. This, however, is of small importance here. 

OtcurreDce of Manganese Ow in CI«y 
Knoltinit from decomputiitiuii of Mau- 
gmiferouH LiiuoatoDe (I'enrose). 

Tlie other class of deposits are carbonate and silicate of man- 
ganese. The latter has never been used as a manganese ore, 
although it is quite common in our western United State.t, 
where it often marks the outcrops of fissure veins, having been 
oxidized superficially to the common black oxide of manganese. 
It is usually very impure. The deposits of carbonate of manga- 
ncae are beginning to attract attention. For example, in the 

' The pemlikr mammiUateil or ruundi^d apitcaraoce of these nodolei leads force to 


Pyrenees they are being worked quite extensively at the present 

The mining of manganese ore in this country has so far pre- 
sented very few legal difficulties, for the simple reason that all 
the deposits of this mineral have been usually in the eastern por* 
tion of the United States, whei'e, as has been stated, the common- 
law maxim of cvjui e»t solum ej%ks est usque ad eoelum prevails. 
Upon lands belonging to the government there are, however, in 
the western United States, deposits of very impure manganese 
ore, which mark the outcroppings of some fissure vein («. jr. near 
Butte and elsewhere in Montana) or more irregular pockety 
deposits (e.^. in the Leadville district), as above stated. Should 
these classes of deposits ever possess value, the law applicable ta 
lode claims would usually prevail, unless, as in the case of some 
iron or of the more valuable ores, the deposit should be of such 
a pockety or bunchy, that is to say irregular, discontinuous type,, 
as to make this improper.^ This will be made ctear hereafter in 
discussing vein and kindred deposits. 

Attention is simply called to the fact that deposits of man- 
ganese ore, which are valuable for the manganese which they 
contain, like some beds of iron ore, are in the great majority of 
cases found forming distinctly stratified beds or parts of a c2is- 
tinetly stratified stratum^ or in the clay derived from the decay of 
such a stratum; and hence when so found upon government lands 
it would appear that the law as to the location of a lode claim 
should not be applicable to them, for the same reason tliat it 
should not be applicable to stratified beds or pockety deposits of 
iron ore, as distinct from iron ore found as the capping of a 
fissure vein or true lode. When so found, therefore, manga- 
nese deposits should, generally speaking, be located as placer 

Aluminum. — The ores from which this metal is extracted are 
rapidly assuming commercial importauce. At present there are 
but two ores of aluminum broadly considered. One is known 
as cryolite^ a large deposit of which is found in Greenland, but 
which is not common elsewhere. This mineral is composed of 
sodium, aluminum, and fluorine. As it is not found in large 

^ The ore in the croppings of flraure much valne as mangane8e ore, though it 
TeiDS is, however, so impnre and superii- is often valuable for the silver ami other 
cial that it is not likely ever to possess metals with which it is associated. 


qnan titles in this couutrj, it does not immediately concern us. It 
18 sufficient to say that if ever found it would probably be found 
as a veinstone, and, like other veinstones, has been deposited in 
aome crevice from solutions in water. 

The other ore of aluminum is known as hcmaeite^ named from the 
town of Baux in France, where it was first mined in quantity. It 
is to-day practically the only ore from which aluminum is obtained, 
if is sometimes referred to as a very pure, though usually indu* 
rated, kind of clay in the form of concretions, which, owing 
to the small amount of silica and of other so-called impurities 
which it containSyis available for the purposes of making the 
metal aluminum. Such a clay as is suitable for making good 
bricks, for instance^ is not, on account of the large amount of 
silica it contains, at all suitable, in the present state of the art, 
for making aluminum, although it may contain a considerable 
percentage of the metal. 

Bauxite is nsnally found in ugregated masses or nodules (con* 
cretions) in aluminous clay, which is sometimes quite pure, but 
often is more or less impure, representing the decomposition of tlie 
Biiperficial portions of some stratum of rock, usually limestone or 
dolomite (magnesian limestone). It is sometimes, however, found 
in a more compact form. The minerals which compose it were 
probably contained in a more disseminated form in the undecom* 
posed or hard rock. When it has had such an origin, it much 
resembles some of the manganese deposits in the United States in 
its mode of occurrence and in the superficial, segregated, and 
nodular character of its deposits. While this theory of origin 
satisfactorily accounts for many of the phenomena observed in 
lome of the European deposits, it does not apply to all of them, 
nor does it explain certain of the phenomena connected with the 
Georgia and Alabama deposits. The origin of these, as well as 
of the French deposits, is ascribed to the action of mineral springs 
or geysera. The deposits in the above mentioned States are found 
in connection with Silurian rocks, usually dolomite, but were very 
probably formed in Tertiary times through the agency of thermal 
springs. These waters are supposed to have come up through 
fault fissures and to have derived the alumina, which they held in 
solution and brought to the surface, from the underlying calcareous 
clay shales. This alumina is supposed to have been redeposited 
in a gelatinous form on or near the surface, during which or after 


which deposition the concretions of bauxite were formed. In this 
way the basin-like character of the deposits is explained.^ The 
French deposits, on the contrary, occur in more or less distinctly 
stratified beds, along with other lacustrine formations and in con- 
nection with Cretaceous limestone. They usually contain more 
iron tlian the ores of the United States. The chief use to whicli 
bauxite is put, hoWevcr, is not in the manufacture of metallic 
ahiminum, but of alum, q, v? 

Qaarrias of Building Stone^ eto. — Quarries of every description — 
that is, of sandstone, limestone, marble, slate, and all other rocks 
useful for building or ornamental purposes — are regarded, from 
a legal point of view, in the same light as sedimentary stratified 
deposits^ although technically speaking it is certain that many of 
them are not of sedimentary origin or stratified. These, for ex- 
ample, are quarries of granite or some eruptive dike, such as trap, 
or a quarry of a rock formed from the superficial deposition of 
presumably hot water solutions such as ^^ Mexican Onyx " or the 
rock " Travertine," of which the city of Paris is largely built, and 
which has had a different origin from common limestone. The 
eruptive rocks, however, with the exception of granite, basalt, trap, 
eto., arc hot quarried to any great extent, and therefore in a gen- 
eral way it is true that most quarries are of those rocks which form 
one of- a series of sedimentary strata ; such, for instance, are the 
red sandstone (brownstone), slate, and marble (crystalline lime- 
stone) quarries of New England. While the outcroppings of a 
number of fissure veins may be quarried in the western United 
States, it must not he f(yrgotten that these are simply the outcrop- 
pings of lodes^ and that they must not he regarded in the same 
legal sense as a quarry of some common huilding stone. Legally the 
common law maxim of cvjus est solum e/tts est usque ad coelum^ 
which sif^nifies in effect that the owner's right is complete within 
the downward vertical extension of his boundary lines, and that 

^ For an cxhanstive and recent (iescrip- cation adopted by the author id liascil 

tion of the various Ainesiran deposits see primarily upon the geological (physical) 

the Sixteenth Annual Report of the similaritieR or differences of the depositft 

Ignited States Geological Survey, Part of the various kinds of mineral substances 

III., — Mineral Resources, 1894, — page which are mined by man ; that is to say, 

547 el srq, such points of similarity or of difference 

'-^ The other metalliferous ores, or so- between their mode of occurrence id 

called metallic minerals, will be discussed nature as causes the same or different 

subsequently and in their proper place, legal reasoning to be applied to them. 
It must not be forgotten that the cla.«<siii- 


he has no right to mine anything outside of these limits, applies 
to all quarries when the material quarried is not a part of a lode 
deposit. For this reason, under the United States law they 
cannot, when upon lauds belonging to the government, be taken 
up otherwise than as a placer claim, which will be treated at 
length further on, and to which the above maxim applies in contra-' 
distinction to a lode claim. As will be seen hereafter, these two 
are very different, especially in respect to the rights of the owner 
with regard to following the ore deposit outside of his boundary 

Placer Deposits In General. — These deposits are always alluvial 
or detrital. By these terms is meant that the material forming 
the deposit is composed of boulders or gravel admixed with sand, 
and sometimes mud or clay, all of which have certainly been derived 
from the wearing away of solid rock, or rock in place, furtlier up 
the ancient or present stream, in the valley of which these alluvial 
or detrital deposits are found. If one reflects upon what has been 
said under the head of erosion, it is at once seen that when the 
rocks in any drainage area contain veins, large or small, or other 
deposits of metals, these metals or their ores, or the solutions of 
these, will be carried down with the other material forming the 
country rock, in the carving or sculpturing out of the valley. If 
these metals or their ores are quite insoluble in ordinary meteoric 
waters, it also follows that they will be deposited and will remain 
with the pebbles or other material forming the alluvial deposit.^ 
On the other hand, however, if they are soluble in such surface 
waters, they will be taken into solution and carried off, probably 
finally reaching the sea, if they should not be redeposited, as will 
be explained later. Now, generally* speaking, there are only a few 
pietals that are with great difficulty soluble in such waters. 
These are principally gold, platinum, and tin. There are two or 
three others equally insoluble, such as iridium, palladium, etc., but 
they are unimportant. All other metals — copper, silver, etc, — 
when exposed for a long time to the chemical action of the atmos- 
phere and surface waters, are slowly taken into solution and carried 
off, and are not found, at least to any great extent, in such detrital 
or gravel deposits. 

These so-called placer deposits have supplied by far the greater 
amount of gold that has been produced in the world. They also 

^ 860 further deecripdon of formation of gold placers on pages xciv, xcv. 


supply practicully the entire amount of platinum and most of tbe 
tiu of the world. Ib tbe case of the latter metal, however, initead 
of being in a pure or native state, it is fouud in the form of tin 
ore or the BO-called " tin stone" (oxide of tin), which, like tiio 
pebbles of phosphate rocit already described, is soluble witli great 
difficulty, and is therefore left behind with the other insoluble 
mutter, such as the ordinary quartz and other pebbles or Band 
with which it is associated. 

Diagniin abowing Origin of AniifeTou Gravel. 

These stratified beds of gravel or so-called placer deposits ore 
of such vast commercial importance that they deserve to Ik 
treated of In some detail, and classified by the name of the metal 
for which they are worked. The description above given is suffi- 
cient to give a general idea of what they are. 

Gold Placers. — As above stated, a very large poi'tion of the gold 
of the world is derived from tins source. In our western country 
gold to the value of hundreds of millions of dollars has iMjen taken 
from various placer deposits which have been worked with varying 
success -since the discovery of gold in this form in California. 
These placer gravels have been in some cases consolidated into 
hard rock, forming a bed of grit, — or conglomerate, as it is 
called. But usually these gravel beds are as yet in an unconsoli- 
dated state, and are therefore easily washed down by the action 
of powerful jets of water. The accompanying illustration gives 
an idea of how sucli a gravel bank is attacked. They are often 
worked, lioivevcr, in other and very much more primitive wave, 
ill many cases the gravel is overlaid by a flow of lava, — which is 
of course now in the condition of hard rock, and has in itself pre- 
vented the washing away of many important gold bearing gravel 
beds. An illustration of thia is also given to show two things: 
first, the great amount of material removed by erosion ; and, 
second, that the present mountain top was once the bottom of 
a river, the valley of which was afterward followed by an out- 
pouring of lava. No doubt these placers give rise to other 


placers; but it is cci'taio that the minute seeminglj water worn 
particles, or perhapt the larger nuggets of the gold, were origi- 
nally in this form or another in veins, great or small, — that is 
to sar, in place in the solid rock which formed a part of the 
moimtain range. 

It has been suggested, however, and probably with some truth, 
that the minute nuggets of gold, or even those of considerable 
size, which are extracted from placer deposits have been formed 
in the gravel in their present position by precipitation from tho 
creek or river water containing the gold in solution. If it 
is admitted that gold is even slightly soluble in the water 
which most creeks and rivers contain, tlien this theory would 
hare much to recommend it. It seems remarkable that these 
nu<^ct8 of gold, sometimes of very considerable siae, are very 
rarely met with in vein mining, though abundant in placer 
gravels. Sometimes there is found what is known to tho placer 

Section of Table Mountain, California, ihowing Old River Gmiel covered and 
protected Irom Kroi>ioti l>y a bed of Lava (Wliitiie^J. Later liiver Gravel 
(boiTD on either side. 

Flume and metho.1 of attacking fl ravel Banlt iti Hydraulic Mining (9cli Ann. Hep. 
State Mineralogist, Calitcimiiv). 

miner as " wire " gold, the edcea of which are very Bharjt, and ds 
not show any evidence of having been rolled or abraded by the 
action of water and sand. There seems to be every reason to 
believe that the so-called " wire " gold of the placer miner was 
deposited in its pi-esent position in the gravel or sand surrouudiuj^ 


it, from waters which had derived the gold from a section of the 
country nearer the source of the stream traversed by gold bearing 
and usually pyritiferous veins. If this is admitted, it is easy to 
understand how what may possibly be small nodular segregations 

— which we know as grains or nuggets — may have been formed.^ 
The fact that the richest portion of the deposit is near or upon 
bed rock, or near or upon a ^^ false '' bed rock, is explainable by 
this theory. This view of the disposition of gold in placer gravels 
finds favor among many scientific men ; but it is not necessary to 
discuss it further. 

It does not necessarily follow that the discoveries of rich vein 
deposits nearer the source of the stream (present or ancient) will 
follow upon the discovery of a rich placer ground below ; for, as 
can be readily imagined, a great number of small veins, each in 
itself too small to be profitably worked, may yield when eroded a 
large amount of gold in the aggregate, and form a very much 
more valuable placer ground at varying distances below the posi- 
tion of the veins. It is simply nature's way of concentrating gold, 

— an accident which has been taken advantage of by man. 
There are some rocks (conglomerates, grits, and sandstones) 

which now contain a great deal of gold, copper, etc., but which 
certainly did not contain these metals when tliey were laid down 
as sediments. These rocks are in the majority of cases tilted or 
turned on end, and some deep break has occurred either in them 
or in close proximity to them ; so that the waters or vapors con- 
taining these metals in solution, and which have subsequently 
ascended through or near them, found in them a suitable reposi- 
tory for their solutions. The famous Calumet and Hecla copper 
conglomerate offers a good example, as well as certain copper 
mines in Bolivia in sandstone, and some of the gold in South 
Africa is said to occur in much the same way. That is to say, 
it is found filling some of the interstices between the pebbles iu 
a way that makes it very probable that it got into the stratum 
subsequently to its consolidation and being tilted, — probably to 
its present position, — and not as grains and nuggets when the 
deposit was accumulating. The writer has seen a deposit of 
somewhat similar character to this in South America, and there 

1 It hafi been pointed oat, on the other niammillated appearance of many nodular 
hand, that the^c grains and noggets of segregations, 
gold do not present the round or peculiar 


IB no doubt that it is of more common occurrence than is geo- 
cmlly supposed.' 

8«etiqii showing Anriteioui Urave] overlaid by L&ts, alio effect of EroiioD sioce 
the oa^KHiriiig of the Lava (9th Ann. Rep. State Mlnemlogist, Califoniia). 

These latter deposits would very probably in the majority of 
cases {altoays providing tliat the ore of valuable metals in them is 
reasonably continuous) be regarded from a legal point of view in 
the same light as fissure veins or as lodes, and under our United 
States statutes should be so located. They are mentioned simply 
in order that no confusion may arise. It is usually very easy to 
determine whether they were originally placer gravels, or whether 
the metals which they contain found their way into them subse- 
quently and after consolidation and upturning of the rock. In 
California it has been decided that an old bed of placer gravel, 
now covered by a capping of lava and tilted so that the gravel bed 
dips at a considerable angle, has nevertheless not Imt its distinc- 
tive character as placer ground, and should he located as such, 
and that therefore a location upon it as a lode \s improper, 

PlatUmm Fiacera. — As jhovc stated, practically all the platinum 
(if the world is derived from deposits of gravel or placer ground. 
This country supplies only a small quantity of this valuable metal, 
tlie great majority of the supply coming from the Urnl Mountains 
in Russia. It is found, however, in small qiiautition in Nortlioni 
California, Oregon, Washington, throughout British Columbia, 
and in small quantities in South America, nearly always associ- 
ated in these localities with gold in the gravel. Quite a -lood deal 
of iridinm is found along with the platinum, but it possesses at 
present comparatively little commercial importance. As in thy 

' Some geolo^Bla. howerer, tfaink that that the gold arcnmnlated thereta in the 

th« (old io the tamnnH rooiclomerata bed aame manner that it accnmnlates in anv 

of Sonth Africa wae deposited tliereJD placepdepositorgtaTPl bedfonningaloiig 

'^-n the bed io qnertion wai In the form a river buttom or nea, beach, aa alread/ 

~— -'■■'- '-1 p»veL Id other. words, describeil. 


case of gold, platinum is found in small seemingly water worn 
and irregularly rounded nuggets Or minute grains, which liave 
certainly been derived from some vein or other deposit in the solid 
rocks further up the stream, and perhaps have been worn to their 
present shape by the action of water, or rather, to speak more 
accurately, by being rolled for ages by the force of mountain 
torrents along with the grains of sand and the gravel, admixed 
with which they are found. 

The same theory, however, which has been suggested with 
regard to the formation of gold placers (see discussion on 
pages xciv and xcv) may apply equally to the formation of plati- 
num placers. 

Tin Placers. — A very considerable portion of the tin of the 
world is found in gravel deposits, and is known as ^^ stream tin.'^ 
It has always certainly been derived, like the foregoing, from 
some vein or other class of deposit carrying tin ore in the solid 
rock formation further up the stream, — in the present or in the 
old bed of which the tin stone is found. The other two metals, 
gold and platinum, are always found in their native state, simply 
because they usually occur in this state in nature. Tin, however, 
as has been pointed out, does not occur native, but as tin ore, 
usually as tin oxide, which is very insoluble. It is therefore re- 
tained in the gravel below the tin veins or other tin deposits. 
Like the former, it is always very much water-worn, but also like 
them it can be readily separated from the pebbles or si^d with 
which it is associated, owing to its greater weight. 



We have now considered all of the principal kinds of deposits, 
which, for the sake of convenience, we will call stratified or sedi- 
mentary mineral deposits, and to which the common law maxim 
of cujus est solum ejus est usque ad ccelum always applies when 
the owner of the soil is the same as the owner of the mineral 
rights ; that is, when there has been no severance of these estates. 
Although, as we have seen, they may not always be technically 
stratified, or in a geological sense sedimentary in character, they 
are such under the legal classification adopted in this book. la 


other words, the same law which would apply to any perfectly 
stratified mineral deposit, technically speaking, would apply in 
a general way, and, excepting the cases to which reference has 
been made, to all of the deposits which have been mentioned 
in the foregoing pages, ufde$9 expre$9lg exempted by statutory 
provision or Land Office Regulation, — e. g. coal and salines. 

We now come to treat of the mineral deposits belonging to the 
other great class, which are not only wholly different in a geo- 
logical and mining sense, but especially in the United States are 
different in a legal sense. For the sake of convenience and sim- 
plicity we will call them Uhetratified Mineral Deposits, a large 
proportion of which are properly known as vein or lode deposits. 
The various valuable metals of the world are usually recovered 
from this or the other classes of deposits described in the fol- 
lowing pages ; such as, for example, antimony, arsenic, bismuth, 
cobalt, a part of the gold, copper, a part of the iron, lead, mer- 
cury, nickel, a small part of the platinum, silver, a part of the tin, 
tungsten, ^i^c, as well as a number of others of less importance. 

Generally speaking, a vein or lode represents some break or rift 
in the rocky crust of the earthy usually penetrating to great depths^ 
through fffhieh channel mineralized waters have ascended, and in 
whiehj on the sides of which, or in the rocks adjacent to which, they 
have deposited their mineral solutions until these have slowly filled 
and choked up the crevice} It must not be thought that these rifts 
were originally necessarily always wide-open cavities, for in many 
cases it is certain that they were very often simply small cracks, 
the original distance between the walls being, perhaps, in many 
cases less than an inch. This, however, has been sufficient to 
admit of the ascent of hot mineralized waters, which, owing to 
their peculiar character, have often, though by no means always, 
dissolved away a portion of the wall or country rock on either 
side, sometimes one, sometimes both, and deposited in the place 
of this rock some of the mineral matter which they contained in 
solution. These waters appear to have contained a large amount 
of sulphur, or at least to have been accompanied by an abun- 
dance of sulphurous vapors. In this way the common combina- 
tion of this element with nearly all of the metals deposited in 
this manner is explained. The exact source of much of the 
mineral matter so deposited, and especially of the valuable metals 

' Sm extended duciuiioii of Teins or lodes in the next diruiea. 


contained in it, will, as has. been BUggesteil, probably remain for- 
ever unknown to us, for these metals have been originally derived 
from depths which can never be subjected to our examination. It 
a not necessary in this work to go into a more detailed discussion 
of the source of these metalliferous waters, or as to the man- 
ner in which they derived the metals which they subsequently 

The author is, however, ready to admit, end anxious not to 
neglect to state, that owing to certain more or less welt-known 
causes the upper or superficial portions of many veins and other 
deposits of nearly all metalliferous ores frequently show, and 
often to a remarkable extent, evidence of what is kaown as su- 
perficial enrichment. This, as has been thoroughly explained 
in the case of iron ore, simply meaua the concentration or tlie 
enrichment of the ore in the upper portions of a deposit which 
have been exposed to the chemical (oxidizing) influence of the 
atmosphere and of surface waterji. This enrichment of the super- 
ficial portions of an ore deposit has taken place more frequently, 
and is more generally applicable than is supposed. That many 
mines of the world are shallow, the ore ceasing to maintain its 
value as the vein is followed downward below the depths to which 
the oxidizing afi^ncies have been in operation, is largely due to 
this fact. It is simply, like the placers, another case of nature's 

Diagnkmi illnHtrntiTi); Ocmirence and General Chnmotnr of Fisanre Veins ; the Inst 
u illuHtnuive of SugierQcial Enrichinent (Fhillipt, Dana, Le Conte). 


accidental concentration of riches which is taken advantage of by 

It does not always follow that the hot waters which originally 
lirought up the mineral matter have come up through some more 
or less straight break or crack, but it often happens that they 
have gradually worked their way up from the depths from which 
they derived their mineral solutions, through any cracks or 
hreaks, great or small, which they could find, and at the same 
time, by acting very irregularly, and by dissolving out isolated 
and frequently disconnected portions of the rock, through which 
they passed, have deposited their load of mineral matter in these 
places, or at such other places where the conditions for deposition 
were favorable. The result of this is that we often have ex- 
tremely irregular and disconnected deposits, or what are known 
as pockets, nests, or bundles of ore. These occur most frequently 
in a rock which in itself is easily soluble, chief among which, as 
is well known, is limestone. In this connection one has only 
to remember that most. of the caves of the world are in lime- 
stone strata, and that these great caverns have certainly been 
eaten out or dissolved out by the slowly acting agency of water, 
hot or cold, through countless ages. Some eruptive rocks, how- 
ever, also readily admit of this process of replacement or substi- 
tution. Hot waters would of course dissolve such a rock more 
readily than cold waters, owing to the action of which many caves 
are supposed to have had their origin. 

These irregular deposits will be described at length in their 
proper place, but the importance of having clearly in mind the dis- 
tinction between them and the more regular veins* or lodes cannot 
he overestimated^ because few things have given rise to so much 
litigation in the United States as the physical and geological 

1 It has been ingenionslj suggested by tliem would be under less pressure nearer 

Professor R. A. F. Penrose, Jr., that in the surface than at great depthB, and 

maoj instances there has not been the would \ye apt to deposit the solutions 

great amount of erosion that is commonly which they contain as they approach the 

supposed to have taken place since the fill- surface owing to the relief of pressure, 

ing of the vein or other kindred deposit Thi^ is a very able explanation, and one 

with the valuable mineral matter which it whicli probably contains much truth. The 

contains. He has further suggested that subject, however, is a very vexed one, and 

if this is true, it is easy to understand why but little is known concerning it. The 

there should be a greater deposition of cer- conditions surrounding deposits in differ- 

tain mineral solutions nearer the surface ent localities are so widely different that 

than at great depths, simply because of it is impossible to lay down any general 

the fact that the hot waters containing rule. 


nature of a given ore deposit. It makes a great difference 
whether or not it should be regarded in the eye of the law as a 
vein or lode deposit, and made to possess all the' legal attribtUes 
of such a deposit^ or whether it should be regarded as one of a 
more uneertain, pockety, discontinuous, and disconnected nature, 
which, like a quarry of building stone, is properly located only as 
a placer deposit when upon lands belonging to the government. 

The difference between the following classes of deposits are 
clearly defined, and are easily appreciated by any one who is not 
only scientifically familiar with the subject, but who has also had 
wide experience in many different kinds of mineral deposits. 
That the testimony of a man of no scientific knowledge, and 
whose experience has been limited perhaps to a single mining 
camp, should be taken upon a subject involving such important 
interests is preposterous, although it' is just such testimony as 
this, followed up by a lack of knowledge on the part of lawyers 
and judges concerning the fundamental differences between these 
classes of metalliferous deposits, which has given rise to so 
much confusion in our mining law. For the reason that a largo 
proportion of the mining litigation- in our Western States, 
especially with regard to gold and silver deposits, has been 
directly or indirectly based upon the differences between the 
following kinds of deposits, and that the question of the proper 
classification of a given valuable deposit is certain to be frequently 
raised again, the different characteristics of ore bodies will be 
described in the following pages at considerable length. 

While the deposits worked for the extraction of these two 
metals, gold and silver, have been, and will continue to be, most 
important in mining, as well as in a legal sense of those which 
are worked in this country, especially in the portion of it west of 
the Mississippi River, it must be remembered that the kind of 
metal or " other valuable mineral substance " which the deposit 
contains has nothing whatever to do with the geological or legal 
distinctions which will be made. For instance, exactly the same 
remarks as have been made with regard to gold and silver de- 
posits would apply to deposits of antimony, arsenic, bismuth, 
cobalt, copper, in some cases iron and manganese, lead, quick- 
silver (mercury), nickel, tungsten, and zinc. In a word, it is 
always the geological peculiarities of a given deposit, and not the 
character of the ore contained in it, which determines the nature 
of the legal reasoning which should properly be applied to it. 


A. Unstbatified Mineral Deposits which are Regular. 

(a.) Fi99ure Vein9 and True Lodes. 

Generally speaking, these are better known as Vein deposits, 
or freqaentlj as Lode deposits. They must not be thought to be 
always a vertical crack, filled with mineral matter, running for a 
great distance across the country, and uniformly rich throughout 
its entire lateral and vertical extension, for such veins are rare^ 
and, practically speaking, are never met with. Fissure veins are 
sometimes vertical, but more frequently dip at varying angles. 
They are thick at places, and at other places very thin, and fre- 
quently seem to disappear entirely, — nothing but a mere crack 
indicating their continuity, — to reappear again in the same line. 
They usually are more or less straight, but are frequently crooked. 
They are often broken and faulted, so that it is often difficult to 
recognize and state positively that the different portions belong to 
tlie same or the original vein. In fact, the breaking and the sub- 
sequent separation of parts of a fissure vein have given rise to 
some very interesting legal questions. Generally speaking, if one 
can positively identify the broken and detached portions of the 
vein beneath the surface, the owner of the upper portion, or that 
which outcrops^ has a right to follow the portion of the vein 
which has been broken off, and removed some distance from the 
one which he has been working, provided the break has not 
removed it to an unconscionable distance. Of course, if faulting 
should make the vein have two outcrops, it would be unreasonable 
to give the owner of the highest outcrop the right to follow that 
portion of the vein which outcropped on the claim of his neigh- 
bor. (See explanatory diagram;) This is, however, a most 
unusual occurrence, and it is usually just as easy to identify por- 
tions of a vein as belonging to one original and continuous vein, 
as it is to ideutify and place together the different pieces of the 
so-called " glass snake '* after it has been disjointed. If, on the 
other hand, there are several veins of much the same size, etc., 
in dose proximity, and of much the same character, it rarely 
becomes difficult to identify the separated portions in it. Very 
fortunately, however, no two veins are exactly alike, and they 
usually present such different characteristics that their separated 
portions can be very easily identified. Moreover, it is unusual 
^^laf there are two large or valuable veins in very close proximity 
to each other. 


Section of Bouded FiBeuie Vein uid Horse [PhillipB). 

The Effect of Faults on Finnre Vetni. 

Djmvnsioiu or tuoIuibm. — The size of a true iiseure vein mar 
vary from a fraction of an inch to in some cases as much as sev- 
eral hundred feet. The latter great deposits are often, though 
not always, more in the nature of contact deposits than true fis- 
sure veins. These contact deposita will be described in the next 
division. The usual size of veins, which are commonly w6rked 
for the valualile metals which they contain, vary from a few inches 
to forty or fifty feet ; but it may be said that, generally speaking, 
tliev are less than twenty feet in width. They seldom maintain 
their tliicknesR for any great distance, but are apt to get thin- 
. npr !ind thicker as they are followed along their course, giving 
rise in some cases to roughly lenticular-shaped bodies of ore. 

QuaUtT and Charaotttr of Contenta. — Teins vary much in the 
qunlitv and richness of their contents, and it often occurs that 
a number of metals are found more or leas mixed together 
ns tliev were deposited in the same vein ; such as gold, copper, 
silver, iron, mangnneso. lead, zinc, antimony, bismuth, etc., most 
of wliieli are nsimlly combined witli sulphur, at least in that por- 
tion of the vein which has not been subjected to surface influences 
which have caused this element to be totally or partially elimi- 
nated. It is only when one of these metals predominates, not in 


quantity, but in commercial valtAe, that a vein is called a gold, a 
copper, a silver vein, etc. On the other hand, it sometimes con- 
tains only one or perhaps two of these metals ; but it is not neces- 
sary here to go into these vagailes of ore deposits. Of course the 
principal filling of the veins is the so-called gangue, which is usu- 
ally some veinstone, such as quartz, calcite or calc-spar, barite or 
heavy-spar, fluor-spar, etc., quartz being by far the more abun- 
dant. All we are concerned with is, as already said, the charac^ 
UVy that t«, the physical features^ of the deposit in which the ore 
is contained, and not the kind of ore or valtuible svhstance in the 

The ore in a vein is apt to vary considerably in quality, that is, 
in character, as well as in value, along the strike of the vein, or as 
the vein is followed along its course, and this fact is noticed 
either at the surface or at any depth below the surface. A fact 
worth careful consideration in this connection is that what are 
known as ^^ ore-shoots " can certainly be demonstrated to exist in 
nearly all fissure veins; that is, the bodies of the rich ore in the 
vein seem to follow a course which may be described roughly as 
being diagonally across the vein, though contained solely in it. If 
the vein is dipping to the east, and striking north and south (i. e. 
having this trend across the country) the ore-shoots will dip some- 
times steeply, at others at a low angle, often in a discontinuous 
fashion^ either to the north or south, but rarely follow the dip of 
the vein, although, of course, contained in it. A curious parallel- 
ism has been observed with regard to these ore-shoots, so that in 
running a tunnel which follows or is, so to speak, in a vein, one 
will get into rich ore, then in a short time pass out of it, go a 
considerable distance through barren vein stuif, come into rich 
ore again, remain in it a short distance as before, then pass out 
again, etc. A satisfactory explanation has not yet been oiTcrcd 
for the origin of these ore-shoots or ore-chimnevs of valuable ore 
in fissure veins or contact deposits; but that they exist, there 
can he no question. • The law, however, is not much concerned 
with them, for the simple reason that in following a vein along 
its course one is definitely bound by the vertical downward exten- 
sion of what are known as ^^end lines^' and cannot transgress 
them, even though the ore-shoot should dip out of his claim into 
that of his neighbor. As will be pointed out further on, he can 
follow the vein or lode itself on its dip outside of his " side lines '* 


indefinitelj, being limited, however, when he does so, to the terri- 
tory included between the extension of his end lines, which, as 
will be seen, must always be parallel.* 

It has been stated that a fissurei'vein must have selvage or clay 
on its walls. This is by no means true. The fact that clay is 
often found on the wall of a vein is usually due to either the 
fact that surface waters have found an easy passage through 
the so-callcd vein, and have dissolved out some of the rock on the 
underside of it, making it soft, and producing a kind of clay or 
the so-called selvage,' or that a slipping has taken place along the 
sides or walls of the vein subsequent to its formation and being 
filled with mineral matter. These veins in which the so-called 
selvage is observed are not to be distinguished in a legal or geo- 
logical sense from any other veins where no such phenomena 
are observed, and where the vein is cemented hard and fast to 
the adjoining country rock on either side. 

Very often veins are found occupying old faults. Sometimes it 
is possible to prove that there was a large amount of clayey ma- 
terial filling this fault plane, due either to the rubbing together of 
the two Bides, or partially to the solvent effect of unmineralized 
waters passing through the crack or fault and depositing sedi- 
ment in it. This triturated or clayey matter hoM very often been 
Mubseqtuntly converted into quartz^ or some other common veinUone^ 
and ore^ by the process of replacement which has already been 
described. The mineralized waters which have accomplished this 
result of substitution of ore for the original matter filling the 
fault plane were, as already pointed out, probably hot, and cama 
from great depths, having their load of mineral matter in solu- 
tion. In some cases it can be shown that the same crack has 
been subjected to more than one mineralization ; that is to say^ 
at different periods after the fissure was formed hot waters made 
their way up through it, depositing sometimes the same and some- 
times different kinds of mineral matter. Especially is this true 
when it can be shown that the vein has been subjected to move- 

1 As wiU be seen hereafter, however, the owner of the apex of a true lode hav- 

if a claim has not ))een located correctly, ing such a coarse may follow the same oq 

that is along the conrso of the vein, and its dip oat of the end lines of his claim ; 

the latter passes oat of the side lines, — in and he is limited to the territory incladed 

other words crosses the claim instead of l>etween the extension of sach end lines in 

mnning lengthwise with it, — the " end the same manner as if they were his origi- 

lines" are then regarded in the eye of the nal and actaal side lines, 
law the " side lines " and vice versUf and 


mentB BDbsequent to its Ijciiig first filled with 8(xa11ed "vein- 
matter" and ore. 

Common exunplea oC Finnn Vein deposiM occnpyiug old E^olt Flams. 

It must not be thoaght that the majority of these cracks were 
wide-open fisaures before they were filled. It is at once seen that this 
rould be an absurdity, for nearly all veins require a great amount 
of timbering or other supports to keep the walls apart. On 
the other hand, there have been cases of original wide open fis- 
sures, at teatt for a portion of their extent, which have been filled 
with mineral matter ; and when this occurred it is very interesting 
to obserre how regularly the rarioua ores have been deposited. 
In such cases they hare usually been deposited in bands which 
agree perfectly on either side, showing that the material in the 
centre — often a mass of interlocking crystals of quartz — was de- 
poeited last, and that until it finally dosed up the fissure or crack, 
the walla, at least for certain distances, certainly stood apart from 
each other and left en open space. ' When the crack, however, was 
filled with selvage, or clay, or broken pieces di country rock, etc., 
the waters containing the ore, which afterward found their way 
op through this crack, would deposit their solutions much more 
irregular!}-, running for a white on one side and then crossing to 
the other, hugging first one wall, then the other; and often, as 
alwve BUf^sted, replacing some of the clay itself, or a portion of 
the country rock, giving rise to many of the common phenomena 
observed in the majority of veins. If, however, it is clear that a 
true fissure vein was dipping steeply when mineralized, it is more 
common to find rich ore in the hanging than on the foot wall, and 
that the replacement of the adjacent country rock in such & case 
has taken place on the upper side and not on the under side. 
Frequently, too, bodies of rich ore are found in the "hanging" 
cuutitry rock apparently disconnected from the vein, but never- 
tbelens due to it as the principal channel through which the 


mineralizing waters aacenddd ; some of them finding their way 
through small tributary cracks or crevices into this banging wall 
rock, dissolved out portions of it, and filled these with ore by the 
process of replacement already described. This ia, of course, easily 
explained on the theory of hot waters endeavoring to escape in a 
general upward direction. Again, there are instances of valuable 
mines where the ore occurs in bodies roughly lenticular in shape, 
along some line of deep-reaching fracture. This fracture may or 
may not he roughly straight, but usually is so. The lenB-ahaped 
bodies of ore may occur at any place along it, and may be close 
together or far apart. In these, however, there is usually sufficient 
continuity of ore along the line of fracture to keep them within 
the class of true fissure veina or lodes. 

Lenticular Ore Bodiu, Section and Hoiiiontal Pl*n (PhiUipe). 

The formation of " horses " in the vein is usually due to the 
irregular course followed by these wat«rs or to their irregular 
and incomplete action in replacing the country rock or triturated 
matter in the fissure', or sometimes to pieces of country rock hav- 
ing become dislodged and afterward sticking fast in the fissure. 
At other times these are due to the fact that the ascending 
mineralized waters found and followed some crack near the main 
fissure, but running off into the country rock and afterward 
returning to the main break. 

The impoi-tance of the subject of replacement in nature of one 
or more minerals by other mineral matter cannot be overesti- 
nmted, especially in the study of the subject of ore deposits. It 
has taken place to an inconceivable extent, and it appears that 
nearly all mineral substances can be replaced by some other 
mineral. Tlie common example that appeals to unscientific men 
most strongly is perhaps that of the so-called " petrified " wood, 
where silica (quartz) has completely replaced the fibre of the 
wood ; so that now we have a perfect tree trunk, which, instead 


of being the original vegetable matter, ia, as ve have Been, nearly 
pure silica or quartz colored by iron or some other metal. Ux- 
aeily the tame pteudomorphism hat taken place to a greater or leti 
degree in nearly all kinds of mineral depotita, the mineral matter 
contained in solution having replaced or substituted portions of 
pre-existing rocks or other minerals. This has certainly occurred 
to a much greater extent than is now commonly believed. 

Looaiit7. — With regard to the position of fissure veins and 
other ore deposits, it must be remembered that tliey may be in 
aaj kind of rock, either eruptive or sedimentary, — e. g. granite, 
syenite, diorite, porphyry, limestone, slate, or sandstone, — or 
sometimes at the contact between these rocks. It is certain, how* 
ever, that when the vein is found passing through certain kinds 
of rocks, — owing probably to their chemical composition and to 
other reasons which are not at all well understood, — these rocks 
ham in themtelvet exerted a favorable influence upon the deposi- 
tion of valuable mineral solutions, while other rocks have exerted 
an equally unfavoratile inSuence. This is often very clearly 
shown where a nearly vertical vein passes through several dis- 
similar formations lying horizontally. In such a oase the vein will 
often be found to be rich in one horizon, and poor in another. 
It has been suggested that currents of electricity have played an 
important part in ore deposition, and on this theory an attempt is 
made to explain this phenomenon. However, so little is at pres- 
ent known concerning the action of electricity with regard to ore 
deposition that it will not be referred to t^in. 

As in the case of dikes, the nature of the rocks has little or 
nothing to do with the position of the veins which are found in 
them. One has only to remember that veins may occur in any 
region whatever, — that is, whether composed of sedimentary or 
eruptive rocks, which have been subjected in the first place to the 
causes (volcanic or otherwise) which have produced faults or 

VlHun Velna tnuMctliig BtratiDed and EraptiTe Rocka. 


cracks in the earth's crust, and secondly to the agencies which 
have caused these fractures or breaks to be filled more or less 
continuously with the ores of the valuable minerals.^ 

Iiongitudinal Extant. — The extent of veins across the country is 
so indefinite that it would be folly to make any statement with 
regard to it hera. Sometimes a vein runs for a number of miles ; 
other times it seems to be impossible to follow it but a short dis- 
tance ; but no thoroughly trained man can ever mistake a true 
fissure vein for anything else. There %% always such a continuity 
of the original crack and of the so^<udled ^ secondary^' mineral 
matter — that i$y mineral matter which was certainli/ deposited after 
the break occurred by the hot waters and vapors which have come 
up through the fissure -— that it presents in the great majority 
of cases an unmistakable and characteristic appearance. This 
continuity on the strike and dip of the vein can usually be shown 
to exist, — unless, of course, the vein after its formation has been 
subjected to faulting, as already described.^ 

Generally speaking, it would seem to the author that an ore 
body, to be regarded in the eye of the law as a ^ lode," and which 
will be given all the legal attributes which belong to true lodes, 
must not only possess reasonable continuity, but must in itself 
represent some well defined and reasonably regular main channel 
of mineralization^ through which the hot waters and vapors 
ascended and in which or along which they deposited their 
mineral solutions. This is an almost infallible test. Thus a 
^^pipe" of ore, representing presumably an old geyser vent and 
having but little lateral extent, though having great depth, would 
fall within the classification of true lodes, and the owner of the 
apex of such a deposit would be entitled to follow it outside of 
his boundary lines. On the other hand a mineralized ^^ shoot " 
or " nm of ore," which in itself does not represent a principal 
channel of mineralization, cannot be regarded in a mining, geo- 
logical or legal sense as a true lode. Many terminable spurs and 
irref^iilar bodies of ore often extending but short distances, which 
may, however, be connected with such main channels of mineral- 
ization, are thus excluded from the classification of lodes and 
" the law of the apex " cannot apply to them. These must, there- 

1 With regard to the caTiRe» which have ^ For the explanation of Qms 
produced these deep reaching fissures see " strike " and " dip " of a veui see Chapu 
p. Ix. XV., DiT. I., A, p. 441, post. 


tore, fall within the claBsification which will be treated of under 
the title ^' UnBtratified Mineral Deposits which are Irregular," and 
the same rules of law which are applicable to this class will be 
applicable to them. 

(b.) Contact Depo§it9 which are $o Continuou* a8 to be regarded 

a$ Lodes. 

It is now necessary to apeak of an intermediate class of deposits 
which do not lie iu real fissures and in a sense are perhaps not 
trae lodes, but which in tlieir general characteristics are so like 
them that they are so regarded in a legal sense. These ai'e what 
are generally known as Contact deposits. They are usually found 
between or very close to the junction between two different forma- 
tions or kinds of rock. There are examples of a c<mtact deposit 
between sedimentary strata where the so-called vein or lode ad- 
heres closely to the line dividing two strata, — for instance, two 
beds of limestone. Nothing is more unlikely than that these 
deposits were f<Hined by sedimentary action at the time when the 
limestone was formed ; on the contrary, it is practically certain 
that the mineralized waters ascended, as in the case of veins, from 
some inferior region along this line of contact, finding in it a 
convenient pathway of escape, and deposited along it their load 
of mineral matter.^ In so doing they probalily replaced very . 
considerable portions of the limestone, the time of mineralization 
having been subsequent to the consolidation and tilting of the 
limestone and the adjacent rocks. Now this deposit is so con- 
tinuous and hugs this contact so closely that it as a whole can 
be regarded as a lode deposit. If, however, the ore or mineral 
matter sliould be discontinuous, and the limestones should be 
found to frequently lie one upon the other, with no intervening 
mineralized matter or break, it should not, in the opinion of the 
author, be properly regarded as a lode (although it would still be 
a contact deposit), and what is known as the " law of the apex " 
should not rule. 

Another familiar case — although it is not on government land 
— is the famous deposits of copper in a conglomerate bed in 
Michigan. It would seem that these generally should be regarded 
as lode deposits, although the copper is found in what was origi- 
nally nothing more or less than an old bed of pebbles now 

1 Vm7 oftm A ftidi frodttoM a so-called coatact deporit. 


cemented together, or conglomerate bed. This bed is now tilted 
to an angle of about forty degrees, and has been greatly meta- 
morphosed by the heat of the adjacent eruptive rocks. It is 
practically certain, however, that thla copper was uot deposited 
at the time this was an unconsolidated pebble deposit, but that 
it got into the stratnm subsequently, and probably after the rocks 
had been tilted. The hot mineralized waters found iu this a most 
convenient place for their ascent, and one which was favorable for 
the deposition of the mineral matter which they carried. 

Ocmrrence of Copper Id Htchtgan In Occmrenca ot Copper and other otm 
Conglomerate and AmygdaloiUal «]oiig Contact between Limestone and 

Belt. Eruptive Rock. 

As to how nearly the characteristics of such a deposit must 
approach a true fissure or vein deposit in order to be considered 
as such from a legal point of view is very difficult to say ; but it 
may be said in a general way that they must always present the 
characteristic of eontinuitp of ore or subsequently deposited mineral 
matter. This ore need not be rich, and indeed may be very poor, 
and the deposit for a long distance may bo practically barren ; but 
some subsequently deposited mineral or minerals must bo proved 
to exist very continuovsltf between the adjacent rocks before such 
a deposit can be classed tit a mining or legal sense as a lode, anil 
it is ajrain supgested that tlie deposit must in ifaelf represent some 
ivell defined old channel of mineralization Ihrongh which tho 
waters and vapors ascended with their load of mineral matter 
from tho source from which they obtained it. The formations 
must not lie tight togctlier and undisturbed upon each other for 
considerable distances; fur this feature alone would be sufficient 
to bring the deposit within the class which will be next described. 

Again, there are some contact deposits next to eruptive rocks 
which are very difficult to classify, both in a mining and legal 
sense. For instance, a dike has come up through some pre- 
existing rock, and the ore has been subsequently deposited alomr 


the side of this dike or in the country rock close to it. It is 
always perfectly easy to follow along the wall of this dike, and 
one is rewarded by finding from time to time bunches of ore 
which in some cases are very rich. The dike may be only small, 
a foot or a few feet in thickness, or it may be perhaps a hundred 
feet in thickness. Now, if it can be shown that the dike itself 
is mineralized more or less continuously, although it may not in 
itself be pay ore, it would seem that such a deposit can be located 
as a lode or fissure vein deposit ; and it is generally true that such 
deposits are so located, although it by no means follows that all 
such deposits should be regarded as true lodes. It is possible, 
however, in many cases to prove continuity, in that the dike itself 
frequently carries a small amount of mineral, or it is easy to find 
between the dike and the adjoining country a little stringer or 
thin deposit of ore, worthless in itself, but valuable in showing 
tiie continuity of the deposit. Often a vein (true fissure) will 
follow along a line of weakness produced by a pre-existing dike 
for some distance, then break away from it. This would be dis- 
tinctly of the former class, and is not now referred to. 

At other places there may be a large and very continuous body 
of ore following across country the contact of some eruptive rock 
-for instance, granite and porphyry — and some other rock, 
eruptive or sedimentary, — for instance, limestone. This ore may 
owe its origin in the first place to the eruption of the granite 
through the limestone, and afterward to the passage of mineral- 
ized waters between the contact of the eruptive and the sedimen- 
tary rock, along which contact they have ascended. These waters 
may have leached out great quantities of both rocks, but especially 
of the rock which would yield most readily to such infiuences, — as, 
for example, in this case of limestone, — and have deposited in its 
place, for long distances next to this contact, huge bodies of oro 
or mineralized matter. Such deposits could not be regarded in 
any other light than as a lode or vein, though having an origin 
in many features geologically different from it. In order to be so 
regarded, the simple nilc wHh regard to deposits of this class is, 
that theif must always shoto a very decided continuity of ore or 
mineral matter deposited subsequently to the intrusion of the erujh 
tive through the preexisting and overlying rocks. Or in cases 
where there are no dikes or irregular intrusions of eruptive 
matttial, and the ore is found occupying a position between two 


Coumon Examples of Contact Depouti. 

dissimilar formations, these muit be very coiitinuoutlt/ divided hy 
tuch ore or subsequently deposited mineral matter bf/ore the deposit 
or contact can be called in a legal sense a lode or a vein, and pos- 
sess the legal attributes of such. 

From what lias been said, it is clear that nil contact deposits 
cannot be regarded as lodes. In fact, a very large number of 
valuable mineral deposits should certainly not be so regarded, 
simply because of the marked lack of continuity of mineral matter 
which lias been deposited subsequently to the formation of adja- 
cent rocks. This class will be treated of in the next divisiou. 

There are other classes of ore deposits which deserve reference 
in passing; that is to say, those which are found in or around 
some neck of volcanic malerial which has welled up from below 
through any kind of rock composing the hard so-called " crust " 
at that particular locality. These may be regular or irregular 
contact deposits around the edge, or the central eruptive mass 
itself may have been shattered by volcanic forces, and true fissuro 
veins thus cstaljlished in it. These fissures in some cases may 
have been subsequently filled with dikes of other eruptive ma- 
terial, or in others with the solutions from hot waters ascending 
through them, and forming deposits of the valuable ores. These 

'■ deposits usually pive no trouble, and should be properly classified 

 iu the great miijority of cases without difficulty. 

Contact [lepoeita in LimestoDe underneath 
Mratnm of Shale — also iaol«t«d 
bnnchee of Ore Id the Uniprtmie. 


Another and qliite rai'e class of deposits is where the hot waters 
have ascended through some more or less round or funnel-like 
opening somewhat after the manner of a geyser, and have filled 
this original vent with valuable ore. These more or less round 
chimneys of ore are rare, and in the great majority of cases can 
be proved to be only rich shoots of ore in an original crack or 
zone of fissuring having a more or less definite strike or trend 
across the country. In very few cases it is claimed that this is 
not the case, and that the ore deposit seems to be the filling of an 
ancient geyser vent, and that the deposit therefore, so far as it 
has been worked, represents actually an irregularly round chim- 
ney, having very** little more extension in one direction than in 
another laterally, but being very continuous as it is worked down- 
ward, except perhaps where it may have been displaced by faults. 
This feature of regular continuity downward would, it is believed, 
be sufficient to bring this unusual class of deposit within the 
requirements of continuity which is so necessary in establishing 
what should be legally regarded as a lode, and what should not 
be so regarded. Some courts have, however, contended with 
much force that a deposit of valuable minerals should have, to 
a reasonable degree, both lateral and downward continuity to fall 
within the classification of true lodes, and to be located as such. 

B. Unstbatified Mineral Deposits which are Ibbegulab. 

Irregular unstratified deposits are those which, owing to their 
irregularity of occurrence, lack of continuity, and general pockety 
or ^' bunchy " nature, cannot be regarded as lodes either in a geo- 
logical, mining, or legal sense. They are not stratified deposits, 
nor are they vein deposits, nor are they the continuous contact 
deposits of the nature mentioned in the last division. Legally 
they are the most perplexing of all of our mineral deposits, espe- 
cially when it becomes a matter of serious iipportance, as is very 
often the case, to properly classify them. 

Any one familiar with mining law appreciates the vast impor- 
tance of being able to put these deposits in their proper class; 
tlial; is to say, being able to determine whether they may be prop- 
erly located as lode claims or as placer claims. As has been inti- 
mated heretofore, and as will be more fully described hereafter, 
the law relating to these two kinds of claims is in many particu- 
lars practically opposed ; and one cannot be too careful to know 


at the outset tho nature of anv mineral deposit Whicli he majr be 
working, or concerning which he may be uskcd tu give lulvioe. 

Seethn of ConiMock Lode (Phillip*). 

Of course when these deposits are upon other than gOT«mment 
-lands, or upon such lands where statutes groaping all classes of 
mineral deposits, irrespective of their geological differences, are 
in operation, their proper classification is of no legal importance. 
On the other hand, whenever the; are situated in the larger por- 
tion of the western United States, it becomes of the utmost im- 
portance to recognize them, and accord them their proper place 
in the classification which the author has outlined and endeavored 
to make clear. 

(a.) Irregular Contact and other Depotitt of Indefinite Shape 
and Continuity. 

Tlio chief characteristic of this class of deposits is their so- 
called pockety nature. By this is meant the lack of coiitiuu- 
-ity of ore or of the subsequently deposited mineral matter which 
contains it. They must always show the reverse of tliat continu- 
ity of mineralized matter which we have seen is so important in 
the two former classes. We have also seen that this miiteral 
matter or gnngue must have been deposited subacquenlly to tlic 
formation and consolidation of the rock in which it in found, and 
into whici, it must have worked its way owing to the operation of 
the airmicics which have produced most of the deposits of valu- 
able metals. 

It is important always to remember, and especially here, that in 
the caRC of all deposits of metalliferous ores which have been 
described under the general head of " Unstratified Mineral Dp- 
posits," the ore i» a ttranger to the rocka in which it is found, 
and does not properly belong there, and must not be oonsidered 


as a part of the country rock. This is a simple distinction, but 
should never be forgotten^ Oenerallj speaking, a metalliferous 
deposit, the nature of which is very unreliable and pockety, and 
which shows a marked lack of continuity with respect to the ore 
and to the subsequently deposited mineral matter carrying it, 
should not be regarded as a lode or vein deposit, and should not 
be so located. It is therefore clear that they should only be 
located wherever the United States statutes are in operation, as 
placer daima. 

As has been said, the deposits of ore of this class must be so 
irregular in shape, so discontinuous in nature, and so separate one 
from the other^ as to be generally known by the mining term 
^pockety." Perhaps it would be better to describe them a« 
irregular and isolated bunches or nests of ore. 

These occur scattered through some particular stratum of rock, 
or following along some line of contact like the former class. 
Sometimes they spread out irregularly along lines of stratificsr 
tion, especially in the case of a limestone rock forming what are 
known among the lead miners as ^^ flats." These have certainly 
been produced by the replacement of a portipn of the original 
rock by the 01*0 which has found its way into it. No matter 
where found, the origin of these deposits presents, generally 
speaking, very little more difficulty than the lode or vein deposits 
which have been described. They have been due in the majority of 
cases to the same agencies, acting , however, much more irregtdarly^ 
and for local reasons which can in many cases be easily deter- 
mined. As in the former class of deposits, the mineral-laden 
waters came from unknown depths with their load of mineral 
matter in solution. Being hot and under great pressure, they of 
course endeavored to find an outlet upward. These outlets were 
usually found through the cracks and joints in the rocks. Wherever 
the conditions were suitable — and what these were is not at all 
well understood, except in a general way -. — and especially where 
these waters were checked or retarded in their upward progress, 
it is found that they would deposit their load of mineral matter, 
often dissolving out portions of the rock through which they 
passed in order to do so, effecting the process of replacement 
already described. Thus, there is often seen, as in the zinc regions 
of Missouri or the Rocky Mountains, masses of the original coun- 
try rock which have escaped replacement, entirely surrounded by 
deposits of this kind. 


It is often found that these waters have been checked in their 
progress by some impervious stratum which is generally sili- 
cions or otherwise insoluble in character, rather than calcareous 
or otherwise soluble. Where the strata are lying more or less 
horizontal, that is, one upon the other, we find that many val- 
uable mineral deposits were formed in scattered bunches or 
nests immediately underneath such a stratum, the chemical 
and physical conditions not being favorable to the further ascent 
of the mineral4adeii waters. This simply means that aa these 
waters came up from whatever inferior sources from which they 
may have obtained their load of mineral matter, they abutted 
asainst this - stratum, and failing to go through it, or being 
checked in tlieir further upward progi-ess, they were forced to 
deposit their mineral matter at this point. Therefore one can 
follow along or underneath this contact — as in the case of a 
stratum of shale resting on limestone, or often porphyry resting 
on limestone — for a long distance, and find that the fitrmations 
rest tightly one upon tho other, with the contact well defined, but 
marked by no intervening ore or otlier mlneinl matter deposited 
at the same time with the ore. Then suddoniy he will come into 
a lai^e pocket or absolutely isolated body of ore which has 
usually spreiid out underneath the overlying silicious stratum, 
mush room-like, although the waters producing it may have come 
up through the little joints, cracks, or senm» in the rock inimedi 
ately underlying the isolated deposit. By following the so-called 
"contact" ho may find a number of such isolated and discon- 
nected deposits. Or sometimes cases are met with, especially 
if these formations have been tilted, where the mineralized 
waters, when reaching this contact, have chosen it as the easiest 
path of escape, and worked their way up through it or along 


it very irregularly, being always pi-evented from ascending verti- 
cally by tlie insoluble stratum above. In this way they liave left 
untouched and unaltered some portions of the contact while they 
have deposited their solutions at others, giving rise to very irreg- 
ular and apparently unconnected deposits. 

Again, sometimes valuable deposits of ore are found irregularly 
distributed along or near the top of anticlinal folds in stratified 
I'ocks, where tliese folds exist in regions, which have not only been 
Kubjected to enormous pressure causing the folds, but which have 
l>een shattered and penetrated by deep-reaching fissures. The 
reason is obvious, for, from the foregoing, it is readily seen that 
tiifv are apt to occur there, if the other conditions are favorable ; 
namely, solubility of an underlying and imperviousness of an over- 
lying stratum, which are affected by the other causes productive 
uf ore deposition. There is a striking physical similarity in the 
reasons, which have caused these deposits to be formed in such 
places, and those which have caused oil and natural gus to collect 
along tlie crests of anticlinals. (See page Ixxiv.) 

Now these deposits are manifestly different from those which 
hive been described, and should not be confounded with them, 
although this is frequently done. Naturally it is to tlic interest 
«f the one owning a claim upon the outcrop of a contact Ijcfwcon 
these two formations — that is, controlling its apex — tu have it 


regarded as a vein or lode deposit, since by following the contact 
downward for a long distance he is quite certain to come into a 
number of these pockets of ore, although he may have no other 
guide than the contact itself. But it is manifestly improper that 
he should have this right where the deposits of ore are in them- 
selves discontinuous in nature, and the formations are often found 
resting tightly upon each other with no intervening mineral mat- 
ter. Of course the element of reasonableness must enter into all 
of these statements, but what has been said is applicable generally 
in all cases, and accurately in the great majority. 

(b.) Irregular Pockets in Limestone or other Soluble Rock. 

More or less similar to the foregoing are the deposits which are 
so frequently seen and abundantly worked ; namely, irregular but 
often large masses or bunches of ore in any kind of rock, usually 
in limestone. It should be said that limestone, of all other rocks, 
furnishes the most perfect conditions for the formation of this 
class of indefinite, pockety deposits, for the simple reason that 
owing to its calcareous nature it offers little resistance to the 
dissolving influences of hot mineral-laden waters. Some eruptives, 
as has been pointed out, have the same characteristic, but not to 
the same degree. Limestone is also supposed to have exerted a 
beneficial influence upon the deposition of certain solutions con* 
tained in these waters, causing them to drop their previous load 
of mineral matter when taking the limestone into solution. 
Many of the lead and zinc deposits of the Mississippi Yalley are 
of this description, and one who is familiar with these deposits in 
Kansas and Missouri cannot have a better type of the class which 
is now being described. These deposits are extremely irregular 
in shape and of varying size, but are often connected by one or 
more little stringers of ore, marking the path followed by the 
waters wliich deposited the ore in its present position. Fre- 
quently they are entirely disconnected and scattered over a wide 
nrea ; but so far as it is possible to judge of any geological pheno- 
menon, it is certain that they were not deposited in the limestone bed 
when it was formed. On the contrary, they were deposited in 
their present position, having derived their mineral matter from 
some inferior source, long after the formation and consolidatiou 
of the limestone. It can be shown, however, that this usually 
occurred where the limestone sliows evidence of having been pre-* 


vioualf broken or shattered to a greater or less extent, the cracks 
hariQg permitted the ascent of the mineral-laden waters ; and tlie 
aanw may be said of the next cIssb of deposits. In some cases it 
is not improbable that some original overlying iasoluble stratam 
may have assisted itt the formation, as iu the last class men- 
tioned, of tht'RC bodies of ore, though at the place where these 
deposits arc worked it is now absent, having been carried off by 

Id this clasB of deposits, as in the former, there is always such 
a marked lack of continuity of ore or of secondarily dc|>osite.d 
roiueral matter that it is clear that they should not be regarded 
■8 lodes, and therefore should not be located as such, but as 
placers, when found upon government lands. Some valuable 
deposits of this class are worked for the silver they contain in the 
western and southwestern portions of the United States. There- 
fore, if the author is right in the above construction, it becomes 
of very considerable importance to recognize and to properly 
classify them. 

(0.) Stockwork. 
The deposits known by this name are simply a network of 
Rtnall veins, crossing each other at all angles, and being always 
found in a rock which has certainly been very much sliattci'ed 
anrl broken before the mineral matter found its way to its present 
Jiusition. Sometimes this extends over very considerable portions 
of the rock in question, or it may extend into the adjacent rocks. 
Sach a condition is quite frequently met with in connection with 
the two previous classes, but usually it is distinct from them. 
Their origin is much the e>nme, for the anccndinji; metalliferous 
waters have simply travelled along these lines of fracture and 


deposited their solutions wherever the cooditioas were favorable. 
Often gold, tin, and platinum, but other metals as well, are found 
in depoeita of this description. These cracks are also often filled 
with material derived from the adjacent rock, such as quartz, 
calcite, feldspar, or asbestos (in serpentine), etc., according to the 
chemical nature of these rocks, by a process of leaching and 

Deposits of this class are extremely unreliable and pockety, 
and while in one sense continuous, iu another are just the reverse, 
because uo particular seam can be followed for any distance. 
For instance, one crack or seam will soon give place to another 
ti-ayersiug it, and so on ad infinitum. A. whole stratum, ot more 
frequently certain disconnected, isolated portions of a stratum, 
such, for instance, as quartzite, is frequently found containilig 
great numbers of these little 'seams traversing it in every direc- 
tion, the majority of which contwn more or lera ore or mineral 
matter accompanying it, and deposited with it through the same 
agencies. Now it would be manifestly improper to call this kind 
of deposit a vein or lode, unless, indeed, the stratum of rock con- 
taining these seams should be reatonahly thin and eontinuoutly 
mineralized for a contiderable diitanee, and be thus made to 
possess the cjiief distinguishing features of a true lode. It would 
also be improper to call it a regular or irregular contact deposit ; 
so, necessarily, when ore is found to occur in this way it should 
be I'C'rai'dcd as a type of deposit different from any of the 

Sti«-k»ork I)e|io«itfl 

Tn the great majority of cnHes, from what has been said, it 
is clear that such stockwork deposits, when they are very irreg- 
ularly scattered through the general mass of the rock forming 
the stratum or strata, cannot properly be located as vein or lode 
deposits ; nor can the whole stratum in this case be sO located, but 


they should be located when upon government lands as placer 
deposits, for much the same reasons as the decidedly isolated, 
irregular, discontinuous, and pockety deposits heretofore described 
should be so located. 

To enable any deposit of valuable ores or other mineral sub- 
stances to be located as a lode claim, or, more accurately, to 
possess all the legal attributes of a true lode, there must always, 
in the opinion of the author, be shown to exist a reasonable can- 
tinuity of ore, or the accompanying mineral matter (gangue) 
presumably formed at the same time and by much the same 
agencies as the ore, both occupying, as has been seen, some rea- 
sonably well defined main channel of mineralization, or there 
should at least be, in the judgment of trained and educated 
mining men of practical experience, a reasonable expectation of 
such continuity of ore. If this continuity and regularity cannot 
be shown to exist, and the expectation of it can be shown to be 
unreasonable, the deposit, in his opinion, should be located as a 
placer claim, and the laws governing this class of claims "Should 

PUULDBLFHIA, September, 1897. 



The following is a legal, but not a geological or mioeralogical, 
classification : <— > 


A« Regular. 

(a.) yofi'-metaUic. 

Coal, fire clay, asphalt, salt, 
gypsam, alum, potash, graphite, 
infasoriai earth, quarries of strati- 
fied rocks, Chile nitrate, etc. 
(b.) MetaUic. 

Iron, manganese, aluminnm, 
gold, tin, and platinum gravels. 


(a.) Ifon-m^allic. 

Asphalt, petroleam, natural gas, 

alum, bauxite, borax, potash, 

' phosphate rock^ guano, quarries 

of rocks not sedimentary, mineral 

paints, sulphur, etc 

(b.) MetaUic. 

Iron, manganese, aluminnm. 


A. Reoulab. 

(a.) Fis8ure Veins or True Lodes. 

(See page ciiL) 
(b.) Regular or Continuous Contact 

Deposited (See page cxi.) 

B. Irreoular. 

(a.) Discontinuous Contact Deposits, 

(See page cxvi.) 
(b.) Isolated Deposits in Limestone^ 

etc., also Terminable Spurs or 

Off'shoots from Lodes. (See 

pages ex and cxx.) 
(c.) Stockwork (possible exceptions). 

(See page cxxi.) 

The above classification, for the sake of clearneas, 
farther than appears in the text. 

Should be property lo- 
cated when on govern- 
ment lands according to 
statutes governing the 
particular kind of de- 
posit; or generally, in 
* the absence of such, or 
when not found in true 
fissure veins or as r^u- 
lar contact deposits, ss 
Placer Claims, and the 
law governing this class 
of deposits should apply. 

Should be located as 
Lode Claims, and the 
law governing this class 
of deposits should apply. 

Should be located as 
Placer Claims, and the 
law governing this class 
of deposits should apply. 

fass been carried oafe m little 



A List of thb More Important Minerals and Metau which 

Possess Commercial Value. 





Anthracite CoaL 

Lignite Coal. 




Magnesite or Dolomite. 





Bitaminoas CoaL 

Mineral Paints. 



Mineral Waters. 



Building Stone. 

Natural Gas. 


Nitrate of Soda. 



Chromic Iron Ore. 


Clay Deposits (Fire 


Phosphate Rock. 

Brick Clay, etc.). 



Precious Stones. 

Corondam (Emery). 






Fuller's Earth. 

Silica or Quartz. 








Infusorial Earth. 
































L Property and Rights of the Owner 
of the Soil in Minerals which are 
in Place, 
n. Propertj in Minerals which have 

been severed from the Freehold. 
IIL Property and Rights in the Minerals 
of Owners of the Soil who have a 
Limited Estate. 
A. Tenants for Life. 

B. Tenants for Years. 

C. Owners of Equities of Redemp- 

IV. Property and Rights in the Mineralu 

where there are Joint Owners of 

the Son. 
V. Property and Rights in Mineral Oil 

and Natural Gas. 

The maxim of tbe common law is cujus est solum eju$ est usque 
ad ccelum, and by the common law the owner of the soil has the 
propertj in tiie minerals lying under it, and between planes pass- 
ing through the centre of the earth and the boundaries of the 
surface. While in place and unworked, minerals are part of 
the freehold, and, as such, real estate. When separated from 
the freehold they become personalty. Minerals in the ground 
are, however, capable of severance or separation in ownership 
from the soil, and .when so severed, are independently and sep- 
arately inheritable and capable of conveyance. This subject of 
property in minerals when they are of a different estate from 
the soil will be discussed in the next chapter. The present chap- 
ter treats only of minerals in land' in which there has been no 
division of the estate, whereby the title to the minerals either 
beneath or on the surface has become vested in some one who is 
not the owner of the soil. 


L Peopbbty and Rights op the Owner op the Soil in 

Minerals WHICH are in Place. 


Minerals in place, or undisturbed in the position where they 
have been deposited by -the i^neiest>f nature, 'are « partrof the 
land and belong to the owner of the soil.^ 

»ir V ♦^ ^dam V. Sriggs Tron Co., 7 tusTi. 861 (1851). 
MassadiMatts. ^^ p^^^^ fi^^ the owner of freehold lands is en- 
titled to all the minerals and strata of ooal, clay, or ore^ lime, marble, 
and the like, not as a separate estate, but as a part of the fee and 
inheritance, and they will pass by descent or by conveyance without 
special designation.'' 

— -, . Lacustrine Fertilizer Co. v. Lake Quano and Ferti- 

wsw Yoric i^^Q^^^ 32, 476 (1880). The agents of the State, in 
digging a canal through certain land, dug up and deposited in piles 
on the banks, certain tnari. This was, both after and before the dig- 
ging, a part of the freehold and the property of the owner in fee. 

(See p. 6.) 

Dttjf'f 4p., 21 W. N. C. 491 (1888). The owner 
j-ennsyivania. ^^ ^ tract of land has the right to remove and convert 
Into money for his own use the timber growing upon the surface and 
the minerals underlying it 

«, Strdtton v. Lyon, 53, 641 (1881). General possession 

** ' of the surface of the close in which a clay pit is situated 
would include the surface of the clay pit ; and whoever is in posses- 
sion of the surface of the soil is in law deemed to be in possession of 
all that lies underneath the surface. 

1 The •xpteMton ** in place " {in miU) natare ; nameljr, bj the decsT and etoakm 
has reference to the condition of the min- or washing down of the rocks containing 
end deposit when it forms a part of the the gold-bearing Teias. The 'reins or 
solid rocky cmst of the eaith, and oocn* lodes, ho'wever, from "which these frag- 
pies the position therein where it was mental particles were derived, when found 
placed Ages ago hj the operation of natn- forming a part of die solid rocky mass 
ral agencies. l%ns the ezpteision is which underlies aU soU, are preperij said 
often ujied of a ledge, lode, or vein, or to be in piaee. So also the term is prop- 
any description of ore body; while, on erly applied to strata of coal, 'limestone, 
the other hand, ftagments which hate iron ore, etc.^ which belong to the owner 
become detached from these, and which of the soil when there lias been noaever- 
have most commonly rolled or have been ance of the estates. Bnt as is seen from 
carried by other naturtd agencies some the statement in the text, the owner of 
diatance from their sonvoe, an ' l eie iied the soil is entitled to ail valuable miaatal 
to ms '^ float" Thus the gcdd in a placer substances which have been deposited upon 
claim, which Is usually a gravel deposit, his land through the tigeney of naturtU/kirem 
admixed with other deirital Material, in n/oAe, although they may he mere float, 
an old or uriee D t river bed, is not strictly and their original sonroe may hava baea 
in place, l^ugh it is true that it has been outside the limits of his property, 
deposited la^ii nhumer by the forces of 



n. Pbopbbtt in Mikebals which have been severed 

FROM THE Freehold, 

Upon severance from the earth, minerals become pereonal prop-' 
ertjff and are dealt with by the law as personalty. This sever- 
ance must be accomplished bj artificial means, the object pf 
which is to separate the minerals, and must not be the mere 
result of natural causes. In the latter case, as we have seen, 
tlie minerals still remain a part of the freehold* So also do 
they when the severance is the incidental result of excavation 
for a purpose entirely distinct from the extraction of minerals, 
when they are allowed to remain mixed with the mass of the 

Mineral, when unextracted, being part of the realty, the taking 
of mineral from the land of another is not larceny but merely a 
trespass, where the taking and carrying away are so closely con- 
nected as to constitute one and the same continuous act. But 
where after the severance the mineral is left upon the property of 
its owner, however short a time, before it is carried away, or if 
another well-defined act intervenes between the severance and the 
asportation, the latter is not to be. considered as a continuation of 
the trespass, but, if the act is done tmimo furandij is larceny.^ 

United States. -^'*^* ^- Oracey^ 94, 762 (1876). Although the 

title to mineral lands may remain in the United States, 
the ores, when dug or detached from the lands under a mining claim, 
are free from any lien, claim, or title of the United States, and, be- 
coming pergonal property j the ownership of which is in the man whose 
labor, capital, and skill has discovered and developed the mine and 
extracted the ore or other mineral product, are, as such, subject to 
State taxation in like manner as other personal property. 
GbUfornia. ^^^^ ▼. WilUamSy 35, 671 (1868). To sever gold-bear- 
ing quartz rock from the land of another and carry it away 
is not larceny but merely trespass. An indictment charging defendant 
witli unlawfully and feloniously taking, stealing, and conveying away 
from the mining claim of B. forty-two pounds of gold-bearing quartz 
rock, the personal property of B., of the value of $400, will not sup- 
port a conviction of larceny. 
]r«» J-«— L^port V. Mining Co,^ 8 N. J. L. J. 280 (1880), Cir. Ct 

^* As between mortgagor and mortgagee ore taken out of 
the earth for the purpose of being removed and sold, and remaining on 
the premises, is personal property. 

^ 8ee further on th«Mibject of ipTenuioe III. and IV., for title in mineriU rained 
bom the freehold, Chap. XIV., Diy. IV., nnder incorporeal rights and Ucenses ; SAd 
as to property in refnae ; Chap. IL, Diys. Chap. XXII., as to trespass and larceny. 


-^ ^ - Lacustrine Fertilizer Co. v. Lake Guano and Fertilizer 
xfewirorjc. ^^ ^ ^^^ ^^g (1880). Marl which has been thrown upon 

the banks of a canal built by the State, having been dug out of its bed, 
is a part of the realty without regard to the question whether or not 
the State acquired title before cutting the canal. 

The owner of land cannot, as a general rule, by agreement with 
another make that which is a part of the realty personal property, 
as against a subsequent purchaser for value with notice, there having 
been no actual severance made. 

North Carolina ^^^^ ^' ^^^' ^^' ^^^ (1^70). A nugget of gold 

found upon a loose pile of rocks savors of the realty, 
and is not a subject of larceny. ^^ Nuggets of gold are lumps of native 
metal, and are often found separated from the original veins ; when 
this separation is produced by natural causes, there is no severance 
from the realty, but such nugget will pass under a conveyance like ores 
and minerals which are embedded in the earth. When ores and min- 
erals are taken out of mines with expense, labor, and eikill, to be con- 
verted into metals, or used for the purpose of trade and commerce, 
they become personal property, and are under the protection of the 
criminal law." 

Brown v. Morris^ 83, 251 (1880). A contract by which one made 
bricks on the land of another, the property in the bricks to remain in 
the owner of the soil until he had been paid for his clay and wood used 
in their manufacture, is not within tlie Statute of Frauds. The bricks 
were personalty, and the contract was concerning personalty. 
Penns 1 ani ^dtts v. Tibhals^ 6, 447 (1847). A. entered into con- 

^ * tract with B., by which the latter was permitted to dig, 

raise, and remove stone from A.*s quarry for certain locks in a canal, the 
quantity to be ascertained by measurement in the locks, and payment 
to be made as soon as and as often as payments were made to the con- 
tractors on the canal. The stone having been quarried, and being at 
the mouth of the quarry, B. has a property in it ; and having l)een 
levied upon and sold by the sheriff under an execution against B., the 
purchaser takes a good title. 

Rhoades v. PcUrick^ 27, 323 (1856). It was set up as a defence to an 
action on a note given for stone quarried on land occupied by the plain- 
tiff, and sold and delivered by her to the defendant, that the plaintiff 
did not own the land, and that as the title to the land was in question, 
the justice of the peace had no jurisdiction of the action. Held^ that 
the stones were personal property when sold, and the title of plaintiff 
to the land was not in question. 

Lyon V. Gomdey^ 53, 261 (1866). Coal which has been purposely 
and lawfully severed from the freehold in the construction of a lateral 
railway under act of May 5, 1832, becomes at once personalty for 
which the owner of the land may maintain trover. (See this case under 
Chap, v., Div. IV.) 

Oreen v. Ashland Iron Co.^ 62, 97 (1869). Plaintiffs under a min- 
ing lease raised iron ore which, being unwashed, and having earth 
clinging to it, was left on the bank to dry. This was the usual course 
of business in mining iron ore, and the landlord making no claim to 
retain the earth, replevin lay for the unwashed ore. 


Lykens VaUey Coal Co. v. Dock^ 62, 232 (1869). Coal as soon as 
mined becomes personal property. The lessee of coal mines made an 
assignment for the benefit of creditors, after which the lessor re-entered. 
The assignee was entitled to coal already mined lying in the minesj 
provided it cotUd be removed withovU injury to the mine ; and he could 
maintain trover therefor. 

Commonwealth y. Steimlingy 156, 400 (1893). One who severs coal 
from the freehold, animo furandi^ and after screening and loading it 
upon a boat on the owner's land carries it away, is gnilty, of larceny. 
The act of carrying away may be separated from the act of severance, 
and is not to be considered as one and the same continuous act, — a mere 

^ Noble V. Sylvester, 42, 146 (1869). A stone split out 

^"^^^ ' and removed from its original connection and position in 
the ledge, and laid up for the purpose and with the intention by the 
owner of the farm upon which it was quarried and left, of using it in 
the construction of a tomb elsewbere, would not pass by a deed of the 
farm. It would be governed by the same principles that are applicable 
to timber, fence rails, and the like, that were severed from the freehold. 
If intended for use on the farm, they pass by the deed in a sale of it ; 
if to be used elsewhere, they do not pass. 

As there was nothing about the stone or its position to indicate the 
ase to which it was to be put, this was a proper subject of explanation 
between the seller and purchaser at the time the deed was executed, 
and such explanation, though accompanied by a former parol exception 
of the stone, which was unnecessary, might well be by parol. It was 
not error to admit proof of the parol exception. 

III. Property and Rights in the Minerals op Owners of 
THE Soil who have a Limited Estate. 

A. Tenants for Life. 

B. Tenants for Years* 

C. Owners of Equities of Redemption. 

Minerals are of such a nature that the enjoyment of the owner^ 
ship of them consists in their consumption, or more accurately, 
in taking them away from the land, and to this extent devastat- 
ing it. It follows that, while the owner of the estate in fee, as 
owner also of the minerals, may remove them and thus impoverish 
the land, those who hold an estate less than a fee in the land 
are subject to certain limitations created for the protection of the 
owners of the executory or reversionary estates. The general 
principle is that the produce of mines already opened and pre- 
viously worked is considered to be temporary profits of the land, 
while all other minerals are an essential part of the land itself, 
whose extraction is waste. 


A. TtnwnJU fw Lift. 

A tenant for life, however the tenancy may hare been created^ 
may work mines of all sorts which were already opened before 
the commenoement of the tenancy ; but it is waste for a tenairt 
for life to open new mines.^ 

The open mines he may work eyen to exhaustion. He may 
also sink new shafts or wells to the same rein, and it has been 
held in an earty case in Virginia that he may penetrate through 
the seam already opened and dig into another below, it. The 
mining, however, must not be carried on unskilfully so as to do 
injury to the inheritance. This right to work open mines carries 
with it the right to take from the land timber for use in the 
operations. A mine ceases to be an open mine when it has been 
abandcmed before the commencement of the particular estate 
with an executed intention to devote the land to some other use, 
but mere cessation of work does not constitute abandonment 
Itt order to constitute an open mine, the op^ng must be upon 
the land which is the subject of the estate. Openings upon the 
vein on adjoining land will not give the right of working it. 

In Michigan, however, the general principle is not applied to 
a case of statutory dower where the land is of no value except 
for its minerals, and in such a case the widow is entitled to her 
share of the royalty of mines opened subsequently to her husband's 

It follows from the general principle that when a life estate is 
created in lands which have been previously leased for mining 
purposes, the rent or royalty thereof belongs to the life tenant as 
income* Also where mineral lands are conveyed by will or deed 
to a trustee with power to lease the minerals (or what includes 
tiieni, the real estate) and pay the income to the e^Mtui qus tru$t 
for life with a remainder over, the rent or royalty derived frook 
such leasing is income which goes to the life tenant. The real 
pfround of this is the intention of the testator or grantor, but the 
eases are brought into line with the foregoing principle by tlie 
fiction that the power to lease amounts to an opening of the mines 
by the testator or grantor. 

> In HoffinitheadY. Allen, ITTtL^ys, it of stolid in <7ri^ii T. FeOewi, 8I| Fa. 

WW mid that the mining of a deposit of 1 U. In any event tiM tenant coaunittiBS 

sand, thoagh technically waste, would not snch waste is liable tp aoooont to ths 

work a forfeiture, while tlie contrary was reversioner, 
said of the mining of coal and quarrying 


VUtodStatM. ^^^^ ^' ^^^^^^^ ^^- ^^-^ ^^» ^^ (1896). A 

mere locator of a miniDg claim, owning onty the po8- 

sessoiy right conferred by the statute, has no such estate in the prop- 
erty as against the United States or its grantee, as that tlie ri^t of 
dower can be predicated thereon by virtoe of any State legislation^ 
Locator having conveyed without the joinder of his wife to another 
who obtained patent, the wife was held to have no dower. 
TiHi>^« Lenfers v. Henke^ 73, 405 (1874), A widow may work 
mines on the land in which she has dower, that have been 
opened between her husband's death and the assignment of dower. 

Priddy v. Chiffith, 150, 560 (1894). Baker, J. ** It is a well- 
established rule of law that the person occupying land as dower can- 
not commit waste upon such land, and that the opening of coal and 
other mines thereon amounts to waste. But it is equally well settled 
in this State that where mines are already opened upon land assigned 
as dower, the widow has a right to operate the same and receive the 
proceeds thereof. It is true in this case the mines have not been 
actually opened upon the land assigned as dower, but there being a 
valid subsisting contract, executed by the husband in his lifetime, 
under which the lessees may at any time open the mines, and by the 
terms of which one dollar per acre rent or royalty is to be paid an- 
nually to the lessor, his heirs or other legal representatives, who at 
the time shall be legally entitled to the life estate in, or fee simple 
title to the land, until the mines are opened and certain fixed royalties 
after the mines are opened and worked, it seems clear to us that in 
justice the widow is entitled to the rent or royalty after the assign^ient 
of her dower. Should the lessees open mines on the lands assigned as 
dower, as by the terms of the lease they may, without the consent of 
the widow, she certainly would be entitled to the royalty named in the 
lease. The act of opening the mine would, in such case, be practically 
the act of the husband, viz. authorized by him. 

^^Then, in contemplation of law, for the purposes of this case, the 
mine may be treated as already opened when the widow's right of 
dower attached." To rent or royalty accrued before the assignment 
she would not be entitled. 

Indiana. ^^^^^ v. McBeth, 61, 473 (1878). The owner of coal 
lands having leased them for the purpose of mining the coal on 
royalty for twenty years, died, and his widow elected to take against his 
will. Held^ she was entitled to one-third of the royalties received from 
the lease. Widow may work open mine& on lands assigned her as dower. 
Moore v. RoUin^^ 45, 493 (1858). A widow is entitled to 
dower in a lime quarry of which her husband died seized of 
an estate of inheritance, if the same had been opened and worked dur- 
ing coverture. 

Maryland. Franklin Coed Co. v. McMillan, AQ, 549 (1878). Where 
^^ strangers have dug and carried away minerals from land 

in the possession of a life tenant, upon which no openings or mine9 
had been made in the lifetime of the grantor, the remainder-men may 
maintain trespass therefor. 

BilUngn v. Taylor, 10 Pick. 460 (1830). This was 

a claim of dower in a slate quarry. It appeared that a 

tract of about four acres, lying together, contained the slate quarry, 


about a quarter of an acre of which had been dug over. The stone 
lay partly above and the residue immediately under the surface, and 
in going down the quality improved. The practice had been to take 
a section of ten or twelve feet square, and go down to the usual depth, 
and then begin on the surface again. It was claimed that the widow 
was entitled to dower only in the part of the tract actually opened. 

Shaw, G. J. ^^ We think it would be too narrow a construction to 
say that no part of this quarry was opened except that a portion had 
been actually dug ; but it must be considered that the whole, lying 
together as one tract, belonging to one estate, and wrought in the 
manner described, was opened, and, therefore, that the widow was 
entitled to dower in that as well as the other estate, of which her hus- 
band had been seized during the coverture." 
Mi hi Seager v. McCdbey 92, 186 (1892). S. died in 1883 and 

ic gan. 1^^^ ^ tract of forty acres valueless except for iron ore. Be- 
fore his death he had conveyed eighty acres adjoining, reserving the 
mines and minerals. No mine had been opened on either tract. In 
1888 leases were made of the mining rights by the guardians of S.'s 
children under leave of court. Held^ S.'s widow was entitled to one- 
third of the royalty received. 

^^The strict rules of the common law of England respecting waste 
and the rights of tenants for life do not obtain here. . . . It is not 
use, but abuse, that is waste. Waste must be consumption, nor is 
consumption always waste. . . . Our statute respecting * dower ' de- 
fines it as the use for life of one- third of all the lands of which the hus- 
band, was seized during the marriage relation. ' Dower* is defined by 
the English authorities as the provision which the law makes for a 
widow out of the lands or tenements of her husband for her support 
and the nurture of her children. Co. Litt. 30 b; 2 Bl. Com. 130. 
The rules applicable to a country where landed estates are large and 
diversified, where the laws of inheritance are exclusive, where the 
theory of dower is subsistence merely, and where there is a strong dis- 
position to free estates from even that charge, do not obtain in a 
commonwealth like ours where estates are small and the policy of our 
laws is to distribute them with each generation, where dower is one 
of the positive institutions of the State, founded in policy, and the 
provision for the widow is a part of the law of distribution, and the 
aim of the statute is not subsistence alone but provision commensurate 
with the estate. 

" In the present case the grant is by operation of the statute giving 
the use of all the lands of which the husband was seized. The grant 
must be held to include the use of these lands, irrespective of whether 
mines were opened upon them before or after the husband's death. 
The question here is not the impairment of one mode of enjoyment or 
source of profit to reach another. There is but one mode of enjoy- 
ment of the land in question, but one source of- revenue or profit. 
The land is susceptible of but one use." 

Kew Jersey Rockwell y. Morgan, 2 Beas. Ch. 389 (1861). **The 

^' widow is entitled to dower in the clay banks as well 

as in any other part of the inheritance. Dower is assignable in 

mines, quarries, and in whatever is part of and appurtenant to the 


land of which woman hath dower, and that whether it be assignable 
by metes and bounds or not. 

*^ The only qaestion that can arise will be in regard to the mode of 
assignment, whether by metes and bounds or by a share of the profits. 
That course will be adopted which will be most favorable to the 
widow, and which will most efifectually secure the enjoyment of her 
right. There can be no difficulty in taking an account of the profit. 
It appears from the answer that the clay banks have been worked in 
connection with the farm, and the profits of the clay may be ascer- 
tained as well as of any other part of the property. Working banks 
is a mere mode of enjoyment." 

Reed v. Beed, 16 £q. 248 (1868). Tenants for life may work a 
sand pit which lias been opened and used by the former owner. The 
principle is stated as applying to ^^ mine, quarry, clay pit or sand pit." 

Gaines v. Mining Co., 33 Eq. 603, reversing s. c. 32 Eq. 86 (1881). 
The life tenant has a right to mine for his own profit, where the owner 
of the fee in his lifetime opened mines, even though he may have 
discontinued work upon them for a long period of years. A mere 
cessation of work, for however long a period, will not defeat the 
life tenant's rights ; but an abandonment for a day, with an encecuted 
intention to devote the land to some other use, will be fatal to those 

Hew York Coates v. Cheever, 1 Cowen, 460 (1823). If during the 
husband's lifetime mines are opened, dower in them is 
properly assignable. Otherwise, if not opened in his lifetime, the 
opening of mines by tenant by dower is waste. The admeasurers 
should take into consideration the value of mines so far as opened 
daring the husband's life, and they may, in their discretion, assign the 
dower in land by metes and l)ounds containing mines or not, by direct- 
ing separate alternate enjoyment of the whole for periods proportioned 
to shares of the parties, or by giving the widow part of the profits. 
Bat they must not take into. account the portion of the mines opened 
since the death of the husband by his alienee, nor the improvements 
made therein by the said alienee. 

Ohio R(imold8 V* Hanna, bb Fed. 783 (1893), C. C. E. D. Ohio. 
By the terms of a contract the first party "grants" to the 
second " the exclusive right, license, and permission to enter upon 
the mine and remove the coal " from described premises, together with 
surface and timber rights, in consideration whereof the second party 
agrees to mine coal, And to take out and pay a ro^'alty on a certain 
minimum amount annually, and to continue until all the coal that could' 
be practically mined had been so mined and paid for. Rights of 
inspection are given to the first party, and a right of forfeiture for 
non-payment of royalty, and of re-entry and possession. A right of 
forfeiture was also given for breach of other covenants, and the sec- 
ond party agreed to "make no sale, transfer, or assignment of its 
rights ander the agreement, nor to sublet any portion of the demised 
premises, without the written consent of the first party, any such sale, 
•tc, to be null and void." 

This agreement was held to be " clearly, in its legal effect and 
meaning, a lease." Such a lease was made by executors under a 


power conferred upon them by will* The money received therefrom 
was income, distributable as such, and not as a part of the corpus of 
the estate. 

Where the chief, if not sole value of lands is for ooal*mining pur* 
poses, and the only profit to be derived therefrom is by sale or lease 
of the coal, either of which the executor in his discretion has power 
to do, the fact that the coal mines were not opened in the life of the 
testator does not affect the authority of the executor to lease the 
same, so as to make the rental thereof income of the estate. 
^ . HoUinshead v. AUen^ 17, 275 (1851). Refers, J., 

i-exmsyivama. ^^ ^j^. p^^^^ charged that if a tenant for life dis- 

covered and mhied a deposit of sand, though technically waste, it 
would not work a forfeiture, and did not come within the operation 
of the Statute of Gloucester, but tenant for life must account to the 
tenant in fee for the profits.^ 

Neel V. Neel, 19, 323 (1852^. It is not waste for a tenant for life 
to work mines already opened on the land. 

This rule applies to all tenants for life, however the tenancy may 
have been created, and to all sorts of mines. It seems tiiat a court of 
equity cannot undertake to determine what is an unreasonable use of a 
mine by a tenant for life, or restrain the same. The tenant for life 
may also take timber from the land for use in his mining operations. 

Irmn v. Oovode^ 24, 162 (1854). The working of open mines by a 
tenant for life or his alienee is not waste, either at common law or by 
statute. Nor is it waste to open a new drift to mines already open. 
The court by virtue of common-law powers might restrain anskilful 
mining and wanton injury to the inheritance, but not such proper 
mining as is subject to no other objection than its liability to exhaust 
the mine. It is possible that chancery would afford relief by account 
between tenant for life and remainder-man, but it is clear that estrepe- 
ment is not the remedy. 

Lynn's Appeal^ 31, 44 (1857). Tenant for life or his i^stgnee has 
a right to work mines or quarries opened upon the land before the 
commencement of the life estate. To do so is not waste. 

Westmoreland Co.'s Ap.^ 85, 344 (1877). It is not waste for a ten- 
ant for life to work open mines. When not precluded by restraining 
words, he may work them to exhaustion. The term ^^ mine" when 
applied to coal is generally equivalent to a worked vein. And when 
opened, the tenant for life may pursue that vein to the boundaries of 
the tract. A tenant for life may not take coal fix>m under the tract in 
which he has the life estate, when there has been no opening in that 
tract to the vein, by means of an opening made on other lands of the 
life tenant under which the same vein runs. 

Eley*s Ap.j 103, 300 (1883). Testator divided his estate into tea 
parts, seven of which were bequeathed absolutely ; the remaining three 
were left in trust for three children for life, with remainders over. The 
will authorized the executors to sell the real estate ** or to lease the 
coal upon or under the same," provided the consent of the owners of 
six-tenths of the premises was first obtained. With such consent the 
executors leased all the coal for an indefinite period at a royalty. 

* See Gnffin v. Fellow, 81 1 Pa. lU, p. 17. 


The rents aocruing from this lease were '* income'' within the mean- 
ing of the will, and as such payable to the life tenants. The power 
given to the executors, subject to the consent of the owners of six- 
tenths, gave the life tenants the same rights over unopened mines as 
U they had been opened and worked in testator's lifetime. 

Wents^s Ap.j 106, 801 (1884^. Testator directed that his execu- 
tors should ^^ collect and pay all the income arising from my estate, 
both real and personal, to my wife during the period of her life," with 
remainder over. The executors were given power to sell certain real 
estate, which was only valuable as coal land, and directed to exer- 
cise their own judgment as to the propriety of leasing or selling said 

The executors leased the coal upon this land which had never been 
worked during the life of testator. This was held to be an exercise of 
the power of lease, and not that of sale, and the rental therefrom went 
to the life tenant as income. 

McClifUock y. Dana^ 106, 886 (1884). A testatrix by her will 
devised her residuary estate to her executor in trust, to invest the 
personal estate and the proceeds of her real estate, and to apply so 
much of the *' yearly proceeds or income " thereof as should be neces- 
sary for the support of her daughter during her minority, and to invest 
for accumulation whatever balance there might be of such income. 
Upon the majority of the daughter the whole income of the estate was 
to be paid to her during her life, and after her death the corpus of the 
estate was limited to her children. The executors had power both to 
lease and sell real estate, and in pursuance thereof '^ leased " pertain 
coal land unopened, when the testatrix died^ to lessees who were 
empowered to mine the coal until it was exhausted, paying therefor a 
certain royalty or rent. Hdd^ that the rent or royalty thus received 
was payable by the trustees to the daughter as ce^^t que trust for life, 
as ^^ income ** of the estate within the meaning bf the wilL 

Shoetnaker^s Ap.^ 106, 892 (1884). A testatrix by her will de- 
vised land to a trustee for the use and benefit of her grandson for 
life, and gave the trustee power to lease the land for coal and mining 
purposes. The trustee leased ** all the coal and veins or strata of coal 
in, under, or upon" the land referred to ^^for such term as may be 
necessary and required to mine and remove all the workable coal in 
and ander said lands " for a specified annual rent or royalty. 

Hdd^ that the rent or royalty held by the trustee under this lease 
was income of the trust estate, and payable as such to the testatrix's 
grandson as tenant for life. A tenant for life when not expressly 
precluded may not only work open mines, but may work them to 

Sayers v. HoskinsoHj 110, 478 (1885). Mines and quarries open at 
the conunencement of a life estate may be worked by the life tenant 
even to exhaustion. See Fadrchm v. FaircMld, 9 AtL Bep. 255 (1887), 
onder Chap. IQ., Div. n. C. 

Janes v. Strong^ 5 Kulp, 7 (1888), Com. Pleas. Testator bequeathed 
half of her residuary estate to her daughter, and durected the invest- 
ment of the rest for ner ose during life, and gave executors power <^to 
soU aad amvert my estate into money, or to lease my ooal interest,'' 


and to invest proceeds of coal lands so as to produce a permanent 
revenue, the income thereof to go to the daughter. After making his 
will he leased his coal interest on royalty. This royalty being part of 
his residuary estate, held, the daughter was entitled to one half, and 
the other half must be invested by executors for her use. 

BedforcTs Ap,, 126, 117 (1889). A married woman, her husband 
joining, conveyed her lands, underlaid with coal, to trustees, ^^in trust 
to control, lease, demise, and to mine-let the said lands," and to col- 
lect and pay over and distribute the net income of said estate to the 
wife, with remainder over, etc. In such case the rents or royalties in 
the trustees' hands derived from a lease of coal in unopened mines 
executed in pursuance of the powers conferred by the deed were to 
be regarded as income, payable to the wife for life, and not as the 
corpus of the estate, to be held by the trustees under the trust. 

Woodhurn's Est., 138, 606 (1890). Testator, prior to his death, 
leased his farm for oil purposes, lessee to pay, irUer alia, one-eighth 
of all oil produced. At time of testator^s death there were three 
producing wells and another being drilled. The proceeds of oil run 
into pipes to the credit of lessor after testator's death, and sold by 
the executors, are income and go to life tenant. ^^ The right of a 
life tenant to operate previously opened mines, and work the same 
even to exhaustion, cannot be questioned. Eley*s Ap., 103 Fa. 303^ 
and cases there cited." 

Blakley v. Marshall, 174, 425 (1896). Certain land was conveyed 
to B. and wife to hold to them for and during their life and no longer, 
and as trustees and in trust for their children, their heirs and assigns 
forever, subject to the life estate. Oil having been discovered upon 
neighboring lands, and the working thereof threatening to drain the 
oil from! the land in question, they, as life tenants and trustees, leased 
the same for the purpose of operating and drilling for petroleum and 
gas for fifteen years, and so long thereafter as oil and gas may be 
produced in paying quantities. Held, they were not entitled to the 
royalties received from the lessee^ but only to the intereat thereon 
during their lives, and at the death of the survivor the corpus of 
the fund arising from the rovalties went to the remainder-men. 

Marshall v. Mellon, 179, 371 (1897). A life tenant of lands which 
have not before been operated for oil or gas, has no right to so oper- 
ate, and cannot give such a right by lease. A life tenant who has 
leased the land for oil and gas purposes cannot recover rent from the 
lessee. In this case the lessee had not taken possession under the 
lease, or operated the land. 

Tennessee ^^*^ ^' ^^^' ^ Pickle, 17 (1888). «' Dower is assign- 
able to the widow in mines, quarries, and the like, land 
she may enjoy the same, either by allotment by metes and bounds, or 
by a share of the rents and royalties, where the mines or quames 
were opened and operated in the life of the husband, whether the same 
be operated by the husband or by lessees paying rent or royalty on 
the yield." In this case coal was being mined on royalty under a 
ninetv years* lease made by the husband, and the widow was assigned 
ohe-third, the royalties to be held by her from the date of his death 
daring her life, unless the mines should be exhausted sooner, in which 


eTent she was to have for life one-third her husband's interest in the 
land covered by the leases. 

Vtaiiiia. Findlay v. Smith, 6 Mumford, 134 (1818). The owner* 
of land containing a salt well 'provided by will as follows : 
«^ Daring the life of my wife it is my intention and request that A. B. 
and her do carry on my business in partnership, both salt works and 
merchandising, each equal shares; and that in consideration of the 
use of my capital they pay out certain legacies." Held, the life ten- 
ants might sink a new well, or tap the same vein as that drained by 
the salt well, and they might work the same to exhaustion. They also 
had the right to unlimited use of wood for fuel to carry on said works 
from woodland of testator, which he had in his lifetime used for that 

Crouch V. Puryear, 1 Rand, 258 (1822). It is not waste for tenant 
by dower to take coal to any extent from a mine already opened, or 
to sink new shafts into the same vein of coal. The tenants may even 
penetrate through a seam already opened and dig into a new seam that 
lies under the first. 

i^Mt Virginia WUliamsou V. Jones, 39, 231 (1894). See this casa 
^^ on p. 29.1 

Koen V. Bartlett, 41, 559 (1895). A tenant for life, when r.ot pre- 
cluded by restraining words, may not only work open mines, but may 
work them to exhaustion. A tenant for life or his grantees are en- 
titled to the rents and royalties from an oil lease executed by the 
owner of the land before the beginning of the life estate. 

B. Tenants for Tears, 

A tenant for years, in the absence of provision in the lease 
showing a contrary intention, may work open mines, but may 
not open new ones.' 

This right may be taken away by express provision in the lease, 
or by implication from the fact that the land was leased for a 
purpose other than that of mining. Of course when the privileges 
given by the lease impliedly carry with them the power to mine, the 
restriction to open mines is removed, and the tenant may open 
mines and work them. This is a common form of mining lease, 
which will be treated under that title below. 

1 It shonld be obserred here that in the land, when its enjoyment for the nses 

tiiose States which have homestead laws, of a homestead is not thereby impaired, 

the consent of the wife is necessary to a may be given by the husband withoat the 

conrejance or lease, and consequently to assent of the wife. If her consent were 

t mining lease. Franklin Co. v. Coal Co., necessary to give validity to a parol license, 

43 Kan. 51 S ( IS90). The recitation of the it would be presumed, if she had full knowl- 

leise in m sabaeqnent conveyimce in which edge of work done or expenses incurred 

the wife joins does not amount to such thereunder and made no objection. Hark* 

cODient. Ibid. ness v. Burton, 39 la. 101 (1874). 

Bat a license to xemore minenis from * Mont. Civ. Code, 1895, § 1271. 


MtoTland. Ofoinga v. Emery, 6 Gill, 260 (1847). In 1840, N. O. 
^^^ leased to E. & H. a granite quarry known by the name of 

F. R., with license of quarrying and getting away stone, for the term 
of six years, and the lessees went into possession. In 1836, B. & C, 
who had title, leased to D. all their estate and interest, being two 
thirds part of all that lot within the farm of N. O., called F. B., f<v 
the term of five years, which, before the action brought, came to £• 
& G. by assignment as to one-half. The metes and bounds in both 
leases were the same. In an action by N. O. for rent due Novemberi 
1841, under lease of 1840 : — 

Hdd (1.) That the lease of 1836 was a grant of the superficies of 
the soil, and did not pass a right to the quarry, as it was not open at 
the date of that lease. 

(2.) That this case is not one of conflicfing leases, the deed of 
1836 being a lease of the surface of tEe soil, that of 1840 a lease or 
license to quarry stone. 

(3.) If a man hath land, in part of which there is a mine open, and 
he leases the land, the lessee may dig the mine ; as the mine ia open, 
and be leases all the land, it shall be intended that his interest is as 
general as his lease. 

(4.) Making of new mines is a waste, unless the lease is of all 
mines on the land. 

(5.) A declaration in a lease, dated 1840, that a quarry had been 
recently, or a short time ago, possessed and worked by W., cannot be 
understood as meaning that the quarry was opened for four years 
Mi bican ^<^rhw v. LaJee Superior Iran Co., 86, 106 (1877). A 

cmcan. |^qj^q|. f^^ years may work open mines unless restricted by 
the terms of his lease, but he may not open a new mine unless the 
privilege is explicitly granted. The lease in this case was for the 
purpose of mining.^ 

SCiasourL McKee v. Brooks, 20, 526 (1855). A privilege given to 
a lessee of doing all such quarrying, grading, and levelHug 
as may be deemed by him requisite and proper for carrying out his 
business of boat building, confers upon the lessee the property in the 
rock so quarried* 

Hew Jefsar Shaw v. Wallace, 25 Law, 455 (1856). As a general 
^^' principle, a lease of land carries with it the mines 
thereon. But this does notapply where there is a severance of mines 
and surface, and an exception or reservation of the former. 

A lessee of the surface, paying rent by raising ore for his lessor 
from the mines in the leased premises, has no right to open new mioes 
or sink new shafts or slopes, except so far as they are necessary to 
the proper and successful working of the mines already opened, 
iraw Y'ork ^^^ ^« StotenJlmrg, 2 Keyes, 467 (1866) ; s. g. 2 Abb. 

Dec. 189, reversing s. c. 36 Barb. 641. Whero, by the 
terms of a lease, the lands are demised for agricultural purposes onljf 
such limitation excludes the right of the lessee to dig stones from a 
quarry on the premises, though opened at the time of exeootiiig the 

^ This is oonseqneatly not in aeooidsaee with the ipMisnJ mlsu 


Kkrv. Peterson, 41, 361 (1661). *^ If viineB ar« al- 
ready openedt or if the lease permits their being opened, 
it IB not waste for the tenant to work them even to exhaustion. Ncmt 
mmUd it be waste to open new shafts or pits to follow the same vein.** 

JSeU V. Strong^ 44, 264 (1863). Where land is leased forcoaU 
nuning pnrposes, mining coal without paying rent, building houses 
and driving through faults without the le88or*s consent, and appropri- 
atii^ the rents for the purpose, is not waste ; and the lessor is not en- 
tMek to a writ of estrepement under the act of Mareh 29, 1922, to 
prevent the same, 

Penn. SaU Co. v. ITeel^ 54, 9 (1866). '« Nor is the admissibility of 
T. N. as a witness for plaintiff questionable. G. bad no interest in 
the sirbject-matter of the controversy ; he had a lease of the surface 
land under which the coal was found, but he had no right to mine it* 
there being no opening on the leased premises through which he could 
do so, and no right, by virtue of his lease, to open a drift or entrance 
for such purpose." 

Griffin v. FelloY>8, 81}, 114 (1873). Where there are no open 
mines or quarries on the premises at the date of the lease, the mining 
of coal and quarrying of stone by a tenant for years are waste opei*at- 
ing as a forfeiture of the term.^ 

These acts, however, may be authorized by the terms of the lease. 
They are so a\ithorized by this language in the lease : ^^ To have and 
to bold the above-granted and demised premises, with every privilege, 
right, member, and appurtenance whatsoever to the same premises 
belonging or in any wise appertaining, whether ways, waters, water 
courses, mines, and minerals of whatever description." 

'^If there he a lease of land with the mines in it, and there be no 
open mines, the lessee may dig for mines, otherwise the grant as to 
the mines will not take effect,"^ 

C. Owners of Equities of Redemption. 

The owner of an equity of redemption who is in possession may 
mine, subject only to the restriction that the security of the lien 
creditor, whether his lien be by mortgage or execution, must not 
be endangered or seriously impaired. 

Mi hi Ward v. Carp River Iron Co^t 47, 65 (1881). It is pro- 

®^' vided by statute in Michigan as follows: Sect. 6363. "Any 
person entitled to the possession of lands or tenements sold under 
execution, may, until the expiration of fifteen months from time of such 
sale, use and enjoy the same as follows, without being deemed guilty 
of waste. He may, in all cases, use and enjoy the premises sold, in like 
manner and for the like purposes, in and for which they were used and 
applied prior to the sale, doing no permanent injury to the freehold." 

This allows the working of open mines and the removal of ore there- 
from, bat not the opening of new mines. 

' See HolUnshead y. AUeHf 17 Pa. S75, * Followed and approved in Appeal 
OB PL 11. of Providence Trustees, 2 Walk. (Pa.) 37 




Ward V. Carp River Iron Co,^ 50, 522 (1883). Same as last case^ 
*' The judgment debtor was entitled to continue the "working of a mine 
in a reasonable and prudent manner, having regard to the customary 
working before the sale, and to dispose of the proceeds. If the mining 
was* improper, excessive, or wasteful, it might at any time have been 
restrained, and the parties responsible for it held liable for the dam- 
ages." The plaintiff must show an injury to the freehold. 
NewJerse Capner v. Mining Co., 2 Green's Ch. 467 (1836). 

r» y« ^iiere ^ farm has been purchased and is occupied for 
mining purposes, and a part of the purchase-money is secured by mort- 
gage, any necessary and proper use of the property by the mortgagor 
in carrying on mining operations is not waste. 

Vervalen v. Older, 4 Halstead's Ch. 98 (1849). Mortgagor will not 
be restrained from quarrying on a lot which was conveyed to him by 
the mortgagee as a ^^ stone quarry lot," the mortgagor's answer deny- 
ing all those charges in the bill from which it might be inferred that he 
was improperly impairing the value of the premises and endangering 
the mortgagee's security. 

Trust Co. V. Quarry Co., 81 Eq. 89 (1879). After decree in fore- 
closure, and execution issued against an insolvent corporation, it 
quarried stone on the premises, leaving it on the ground. As between 
mortgagor and mortgagee such stone was subject to the mortgage. 

See also Leport v. Mining Co., 3 N. J. L. J. 280 (1880), p. 6. 

Pennsylvania. ^"-^'^ ^^"^ ^^ ^^- ^ ^- ^^^ (^^^^)- '^^"^ ^^"^'^ ^' 

land has the right to remove and convert into money 

the minerals underlying it ; but if he has lien creditors, they have the 
riglit to object to the commission of waste to the prejudice of their 
liens ; and at their instance the owner will be restrained in the exercise 
of the rights and powers of an owner. 

Riglder v. Hamilton, 10 C. C. R. 260 (1891). Opening and operat- 
ing a new mine or clay pit upon land where none existed at the time a 
mortgage was created, is waste as against the mortgagee, and will be 
enjoined at his suit. It makes no difference that the land was pur- 
chased from the mortgagee as mineral land. 

IV. Property and Rights in the Minerals where there 

ARE Joint Owners op the Soil. 

Tenants in common of lands containing minerals have a right 
to take out the minerals, although to do so tends to destroy and 
lessen in value the estate.^ Such mining is not waste at commoi^ 
law. Each tenant in common, however, is limited to his own just 
share. And by this is not meant that he may mine until he has 
taken out his share of all the minerals in the land, for that is 
necessarily unascertainable, but he is entitled only to his share 
of what is actually taken out. It makes no difference that the 
mineral is practically inexhaustible. 

1 This right is limited, and the proceed- scribed in Minnesota by Gen. Stati. 1894^ 
ings by which it may be exercised arc pre- §§ 58dO-S. 


He is accountable to his co-tenants for their share of all that 
he mines. He must compensate them for the value in place of 
their share of the minerals which he mines and takes. This 
value is to be measured by the vahie of ore leave or royalty, that 
is, of the privilege of removing the mineral, which in turn is to 
be arrived at by expert opinion. This obligation is enforced in 
the same manner in the case of mines as in the case of the 
profits of any other real estate owned jointly.^ 

This right of a tenant in common to dig for minerals, with the 
appurtenant right to deposit the refuse of mining on the land, is 
not an incumbrance on the interest of his co-tenants. 

One tenant in common cannot create a new, and distinct tenancy 
in common in the land. He consequently cannot convey mineral 
rights without the concurrence of his co-tenants, nor convey his 
interest in the land, reserving to himself the mineral rights, though 
he may grant a license to another to dig to the extent of his in* 
terest. Such licensee is accountable to a dissenting co-tenant. 

For the same reason an owner of the surface who, with others, 
is a tenant in common of the minerals, may nof convey a portion 
of the surface and his share of minerals beneath it. 

Lands containing minerals are subject to partition like any 
others, for if they cannot be divided without prejudice to the 
whole, they may be awarded to one or more of the tenants at a 
valuation, or they may be sold and the proceeds divided.^ In 
New Jersey, however, it has been held that when the location, 
extent, and value of the mineral deposits cannot be ascertained, 
there can be no partition. The possession by a tenant under a 
mining lease is not a bar to partition. Pending partition pro- 
ceedings, however, mining on the property will be enjoined if it 
is shown that it is causing irreparable injurj to the property, or 
will embarrass the proceedings. 

¥T t¥^A a#. 4. Clowser v. Joplin Mining Co.^ reported in note to 

umtea otaces. ^^^ ^ ^^^^ ^^^^^ ^ j^.j-j^^^^ ^^g (1877), C. C. W. 

D. Mo. 
Kiekel, J., in charging the jury, said : ^^ The court approves the 

1 In PenDsjrlTBnia thig right to an P. L. 502. These acts are only applicable 

aoooant is defined and a remedy provided when the rights of the complainants are 

Ij Act of Assembly, 25 June, 1850, P. L. equitable. Coal Co, v. Snmoden, 42 Pa. 

573, as also are the rights in general of 488. 

tenants in common of coal or iron ore ^ Pennsylvania Act 26 February, 1870, 

mines or minerals by Act 22 April, 1856, P. L. 256; Act 24 May, 1871, P. L. 1088. 


^U laid down by the Sapreme Court of Pennsylvftiiia. Wb«r€ a t*D- 
ftDt Id common exercises his undoubted right to take the commoQ 

Kroperty, and has no other means of obtaining his own just share than 
y taking at the same time the share of hid companion, the value Of 
the ore in place is the only just basis of account. ColemaiCB App^i 
62 Pa. St. 278." 

Bainey v. Fricke Coke Co., 78 Fed. 389 (1896), C.C. W. D. Pa. 
Complainant brought a bill in equity against defendant for the partition 
of certain land which they owned in common, and of which the under- 
lying coal constituted the principal value. Defendant in its answer 
conceded the right to a partition. Pending this suit, complainant ex- 
tended workings from certain mines owned by him on adjoining land 
and began mining coal from the common land. Defendant then filed 
a cross-bill to enjoin such mining. Siddy that the court had the powee 
to enjoin such mining during the pending of the partition suit, and in 
view of the complications which would result from it, in the adjust- 
ment of the respective interests of the parties, and the possible injury 
to the common property, such power should be exercised. 
Colorado Omaha & Grant JS. & R. Co. v. Tab(yr, 13, 41 (1889). 
A license to dig ore given by one tenant in * common ex- 
tends only to his interest in the mine. 

Conneotleut. ^t'^^ford Co v. MiUer 41, 112 (1874). Where the 

owner of land from which mmeral rights have been 
severed, is a tenant in common with others in such rights, and con- 
veys a portion of the land by metes and bounds, and also his share of 
the mineral rights therein, the deed, so far as such easement is con- 
cerned, is inoperative as ao^ainst his co-tenants. 

Marsh v. Holley^ 42, 453 (1875). A large quantity of lands be- 
longing to the estate of a deceased person was distributed to seven 
children, with a provision in the distribution that all the iron ores in 
the land should be owned by them in common in equal seventh parts, 
and that reasonable damage should be paid to the owner of the land 
who should be injured in digging for or transporting the ore. De- 
fendant, who had become owner of three sevenths, executed a bond to 
plaintiff for a conveyance to him of an undivided three sevenths of 
the ore right upon a certain farm, which was a part of the estate and 
adjoined other parts. In an action for breach of covenant for failing 
to make the conveyance, held^ the right of the other co-tenants to dig 
for ore on any part of the estate, and deposit on any part of it the 
earth and dibris thrown out in doing so, was not an incumbrance on 
the ore rights conveyed, but was merely an inconvenience inseparable 
from the nature of the estate, and to which each of the co-tenants 
must submit. 

Tlie defendant could not convey an undivided ore interest in a part 
of the estate without the concurrence of his co-tenants. 
Oeoreia. HuU\. McDonald^ 22, 131 (1857). If one tenant in com- 
mon receive more than his just share of the proceeds of gold 
washings, he is liable to account to his co-tenants for such surplus, 
and for all the profits which he makes out of such surplus ; and if 
there is proof that he used such surplus, and no proof as to whether he 
made any profits out of it or not, the presumption is that he made prof* 


its oat of It, and profits at least equal to the interest on the value of 
such surplus calculated at the legal rate. 

<n,.^^^ Murray v. Haoerty^ 70, 318 (1873). Mining coal tends to 
injure, destroy, and lessen in value tlie estate in lands withia 
the meaning of an act antliorizing one tenant in common to maintain 
trespass or trover against his co-tenant for such an act 

Ame$ V. Am£8^ IdO, d9i^ 1,1896;. In a proceeding for partition, the 
surface may be awarded to one party and the underlying minerals to 
another, where the parties consent, and owelty may be ordered for 
the purpose of equalizing the shares. 

^^ If these two separate interests and titles were united in one per- 
son, . . . the owner would have the right to sever the two estates by 
deed or devise. Where tlie owner would have that right there is no 
Auucj'eui aiiiluulty in a court of chancery severing the two estates in a 
partition proceeding, where it is rendered necessary in the interest of 
Justice, and decreeing the dominant estate to one and the servient 
estate to another. In recognizing this principle we are applying it to 
the facts of the particular case before us, where the defendants in 
error consented to accept the seiTient estate. We do not at this time 
determine the question whether a person not conversant with the man- 
agement of the mine, and without capital to operate it, could be com- 
pelled to accept as his share a mine thus set ofiP to him against his 
consent, or whether a mine could be set off to a minor." 

Maasachuaetta ^^^^'^ v. BHggs Iron Co.y 7 Cush. 361 (1851). A 

tenant in common of three-fourths of a tract of land 
conveyed his estate, reserving the iron thereunder. This reservation 
was void as against his co-tenant. An attempt to create a new and 
distinct tenancy in common between one co-tenant and others in dis- 
tinct parts of the common estate is contrary to the rules of law. The 
owner in severalty of land may convey the mines to one person, the 
quarries to another, and retain the general interest in the soil ; but if 
the owner of an undivided part of a piece of land could do this, it 
would be attended with all the inconveniences to his co-tenants arising 
from a conveyance of his interest in a particular pai*t by metes and 

jjj^^^^^^. Watson V. U. B. * df. Gravel Co., 50 Ap. 635 (1892). 
One tenant in common has the right to sell gravel taken by 
him from the land, and to collect the purchase-money. 

Haettsder v. Mo. Iron f'o., 110, 188 (1892). Possession of land by 
a tenant under a perpetual mining lease will not prevent a ^partition 
suit between the co-owners, subject to the rights of the tenant. 

Childs V. K (7., St. J. & a B, R. Co., 117, 414 (1893). The exca- 
vation and removal of rock by a co-tenant from the joint land, and sell- 
ing the same and thereby diminishing the value of the estate, constitute 

Kcw Jeney ^anJdmUe Co. v. CondU, 19 Eq. 394 (1869). One 
^' tenant in common cannot convey mineral rights to the 
prejudice of his co-tenants. Such conveyance is void as to the co- 
tenant, but good as to the grantee. A grantee of the right to minerals 
froQ one tenant in common cannot call for a partition of the premises. 

^ This Tiew is not in accordance with the geneial mls^ 


Kemble v. Kemhle^ 44 Eq. 454 (1888). A partition of lands contain- 
ing mineral deposits cannot be ordered if the location, extent, and value 
of such deposits cannot be ascertained. 

p , . Cases growiiig out of the. ownership of the Cornwall 

^ ' Iron Banks} The Cornwall estate consisted of various 

tracts, aggregating about nine thousand acres. One of these was the 
Cornwall Furnace Estate, a part of which was the Cornwall Ore Banks 
and Mine Hills. In 1785, of the Cornwall Furnace Estate, Curtis Grubb 
owned undivided three sixths, Robert Coleman one sixth, and Peter 
Grubb two sixths. On Dec. 9, 1785, these three entered into an agree- 
ment for the partition of the Cornwall Furnace Estate, Hopewell 
Forges, and Union Forge, held by them in common, by which they 
appointed seven persons named to make valuation, appraisement and 
partition thereof, and provided that the ore banks belonging to Corn- 
wall Furnace be divided into three equal parts ; two parts, consid- 
ering quantity and quality, be allotted to .Curtis Grubb and Robert 
Coleman, and the other part to Peter Grubb. Peter Grubb died in 
January, 1786, having devised his real and personal estate to his sons, 
Burd Grubb and Henry Bates Grubb, to be equally divided between 

Curtis Grubb, Robert Coleman, and the guardians of Burd and 
Henry Bates Grubb entered into an agreement, dated May 6, 1786 
(referring to agreement above), for the valuation, partition, etc , of the 
Cornwall Furnace property and other estate held in common, provid- 
ing that '' the ore banks belonging to Cornwall Furnace aforesaid be 
divided into three equal parts," two parts, considering quality and 
quantity, to be assigned and allotted to Curtis Grubb and Robert Cole- 
man, and the other part to Burd and H. B Grubb. Seven persons 
were appointed to make the valuation and partition, of ichom Thomas 
Clark was one. By this agreement Cornwall Furnace, with such parts 
of the lands and privileges as should be deemed necessary and equal, 
was to be assigned to Curtis Grubb and Robert Coleman. An equiva- 
lent for their shares was to be rendered to Burd and H. B. Grubb oat 
of other of the real estate. .Amicable actions of partition were to be 
entered into to effect the arrangement. On Aug. 30, 1787, another 
agreement was entered into, wherein it was stated that it had been 
found, on the fullest investigation, that the agreement of 6th May, 
1786, could not be carried into execution without injustice to some of 
the parties. Therefore it was agreed that certain persons named 
(Thomajs Clark being one) should make partition of Cornwall Furnace, 
Hopewell Forges, and all the lands, etc., according to quantity and 
quality, and assign and allot the same according to the real interest 
and conveniences of the several parties, " provided always, and it is 
hereby agreed, that the ore banks belonging to the Cornwall Fuimace 
shall remain together and undivided as a tenancy in common^ the said 
Curtis Grubb being entitled to three sixth parts thereof, the said 
Robert Coleman being entitled to one sixth part thereof, and the 

1 For the Bake of convenience in ref- portance on the sabject of the joint 

erence these important decisions are ownership of mineral land justifies the 

gron|>ed together. Their close relation nnusoal amount of space given to them, 
requires this juxtaposition, and their im- 


said minor children being entitled to the remaining two sixth parts ; 
and that for this purpose an accurate survey shall be made of the said 
ore banks and hills, if not already done, and it is hereby declared to 
be the true intent and meaning thereof that neither of the said parties, 
their agents or workmen, shall interfere or interrupt either of the other 
parties at any mine hole by them occupied for the purpose of raising 
iron ore." 

A subsequent agreement of August 30, 1787, provided : '' Whereas 
it has been suggested that the article respecting the ore banks and 
hills requires further explanation, and that it may so happen that 
veins of ore may extend beyond the limits of the survey made lately 
by Thomas Clark, it is agreed that the said Burd Grubb, Henry Bates 
Grubb, and Robert Coleman and their respective heirs and assigns 
shall have full liberty and privilege of ingress, egress, and regress to 
and from the said mine hills, and shall have free and uninterrupted 
liberty and power to dig, sink shafts, drive drifts, raise and carry 
away, any ore that may be found to extend beyond the limits of the 
said survey, without doing any material damage to the iron works or 
plantations. And it is further agreed that the privileges of the water 
are hereby secured in most ample manner for the use of Curtis Grubb 
and liobert Coleman, their heirs and assigns foiever, and that tiiis 
memorandum be considered to all intents and purposes part oi the 
foresfoing agreement." 

Amicable actions in partition were entered, and the referees 
(Tiiomas Clark being one) reported a division of the real estate, and 
further that the two tracts, ''and also the ore banks and mine hills 
of Cornwall Furnace, do still remain undivided, to be held by the said 
Curtis Grubb, Robert Coleman, Burd Grubb, and Henry Bates Grubb, 
as tenants in common, according to their respective shares, and to 
the covenants and articles in the said agreement hereinbefore recited 
contained." This report was confirmed and partition ordered. 

Coleman v. Coleman^ 19, 100 (1852). Robert Coleman and George 
D. Coleman, owning fifteen forty-eighth parts of the Cornwall ore 
banks, brought partition against Robert W. and William Coleman, 
owning twenty-five forty-eighths, and E. B. and C. B. Grubb, owning 
eight forty-eighth parts thereof. The parties all owned furnaces on the 
Cornwall estate, which had to this time been supplied with ore from 
these banks. The banks consisted of shapeless and unst ratified 
masses of iron ore distributed unequally as to quality ^nd quantity 
under the surface, which latter was of no value. 

The amicable partition above was held to be a bar to this action. 
This constituted a judgment in partition, and was a good defence to a 
subsequent action for partition of the mine hills. It was, in effect, 
partition of the profits of the mine hills. The soil was valueless. The 
ore was the object to be secured, and this was indivisible into equal 

The partition thus made was binding not only as a Judgment, but as 
a covenant running with the land. If the ore should fail, or the manu- 
facture of iron on the estate should cease, the agreement would have 
accomplished its mission, and the bills might tien be parted. But 
until the happening of one or the other of these events they were to 
remain appurtenant to the rest of the estate as before. 


*' We have no doubt that any Tnineral lands held in common, what* 
ever the pecaliarities of their structure, are subject to partition under 
our Acts of Assembly ; for if, upon inquest, it is found they cannot 
be divided without prejudice to or spoilfug the whole, they may be 
ordered to one or more of the tenants at a valuation, or to be sold 
and the price divided. But neither the letter nor the policy of oar 
statutes demands partition of an estate in circumstances such as attend 
these hills of ore." 

Coleman v. Ghrubbj 23, 393 (1854). Ti'espass by tenants in com- 
. mon of the ore hills against co-tenants for ore collected and carried 
away, which it was alleged was taken outside the limits of the Clark 
survey. A draught alleged to be a survey by Clark, referred to in the 
second agreement of August 30, 1787, was ofifered in evidence, showing 
within its limits less than the whole of the ore hills. The jury declined 
to determine whether this draught was the one referred to or not 

It was held that under the first agreement of August 30, 1787, the 
whole of the mine hills was exempted from partition and was to be 
held in common, and that either of the parties in interest had the right 
to take from within the natural boundaries of the three hills either 
surface or vein ore, not interfering with openings made by either 
of the others, and '^ without doing any material damage to the iron 
works or plantations." 

2d. In the absence of any survey as referred to in the supplemental 
agreement of 1787, the said agreement is considered as an exteusion 
instead of a limitation of the rights of the tenants in common ; and 
under the supplemental agreement shafts might be sunk and drifts 
made' beyond the base of the mine hills for the purpose of mining 
veins found to be contained in the hills. 

3d. If the terms of the agreement were doubtful, the usage of the 
parties during two generations in taking ores from the hills for their re- 
spective furnaces would be an important element in their construction. 

4th. Neither party could maintain trespass against the other for 
removing surface ore from one of the hills from above its base,. 
*^ Shafts might be sunk and drifts made beyond the base of the mine 
hills for the purpose of mining veins found to be contained in them. 
Veins of ore conforming in their dip to the surface of such hills could 
be advantageously mined only by taking position beyond the base of 
the hills, sinking a shaft to the vein, and then mining it upward to the 
outcrop. This was probably what was intended to be secured to the 
parties, and hence the stipulation against damage to the iron works 
and plantations, all of which would be found beyond the hills, and 
none of them upon it." 

^'I see no necessity for presuming that a vein was to be mine<| 
downwards to determine whether it extended beyond given limits. 
When iron ore is found in veins, and the angle of inclination is ascer- 
tained, it is easily determined on the surface with sufficient accuracy 
for practical purposes whether they extend beyond the specified limit.'* 

Blewett V. Coleman^ 40, 45 (1861). Two of the tenants in common 
of the ore hills leased to plaintiff, who mined copper from the hill, but 
outside of the alleged Clark sur\'ey as relocated by Weidle. Other 
tenants earned off the ore when mined, and plaintiff brought trespass. 


**The Clark sarvey has embarrassed the parties interested in the hillo 
long enoagh." **- To determine the limits of a hill may in some in- 
stances be difficult, bat it was not difiicalt to determine what plaintiff 
had mined on the hills." 

The Clark and Weidle surveys being disregarded, ^' there could be 
no question as to right of plaintiff or his lessors to take out copper ore 
from the mine hills, though iron ore only was referred to and named 
by the parties in the original agreement, for they owned the hills and 
all they contained as an estate in common before the other agreements 
were made, and if iron ore only was referred to therein the property 
in the other ores remained unchanged." 

Coleman v. Blewett, 43, 176 (1862). (Same as last.) In action 
of trespass by a tenant of two of the joint owners, against certain 
others of the owners, for taking and carrying away copper ore which 
bad been mined from the base of one of the hills outside of the Clark 
surrey as relocated by one Weidle, it was held : — 

That under the agreement of August 80, 1787, the whole of the 
Dine hills was exempted from partition, and was to be held in com- 
mon, and that within the natural boundaries of the three hills either 
of the parties had the right to take out any ore that might be found, 
8Qch a construction being according t^) the terms of the agi-eement, 
the usage of the parties at that date and subsequently, and equitable ; 

That the Clark survey of the mine hills which was not proved to 
have been adopted by the parties to the original agreements, nor an- 
nexed to them, nor incorporated therein, nor in any manner made a 
part thereof, was dependent upon traditional knowledge by wiiich 
it bad been relocated by Surveyor Weidle, but which other surveyors 
ooald not locate, and which, as located by Weidle, did not embrace 
all the ore, nor all of the hills in question, must be set aside and dis- 
regarded as not the ^^ accurate survey " by which the parties meant to 
hold the mine hills in common ; and, 

That the Clark survey being thus set aside, the plaintiff had the 
right to mine copper ore from the mine hills, and was entitled to 
recover from the defendants in tlie action of trespass. 

Coleman^s Ap.^ 62, 252 (1869), affirming Coleman v. Coleman^ 1 
Person, 470. Bill in equity for an account Held^ the parties to the 
agreement and their successors were tenants in common of the ore 
banks. The agreement that these should remain undivided established 
a permanent tenancy in common, and partition could not be had 
without violating the covenant which ran with the land. 

The agreement provided that neither of the parties should interfere 
or interrupt the others at any mine holes by them opened and occupied 
for the purpose of raising ore. This was not a mode of providing for 
the enjoyment in severalty of the shares of the parties. It meant that 
the parties should be^ndisturbed in their rights as tenants in common, 
nor did each tenant have a mining ri^t in the bank unlimited in ex- 
tent A man cannot have an incorporeal easement to dig ore in bis 
own fee. 

Taking ore from the surface of the earth or hollow pits is as much 
nining as digging it from under the ground. If a tenant in common 
ttkes more than his share of the ore taken out, he is accountable 



therefor to his co-tenaDte ; they need not wait until the whole ore is 
exhausted in order to ascertain his entires share, nor does it make any 
difference that the ore is practically inexhaustible. 

They are liable to one another for ore used as well as for ore sold. 

The agreement of 1787, whereby these ore banks are held as a ten- 
ancy in common, unpartitiouable, does not take away the right to aa 
account. The fact that all parties continued to use these ore banks 
for a long period of time without demanding an account does not de- 
prive them of that right in this case, where for over fifty years they 
all took the ore simply for their own use, and recently the re- 
spondents began to sell the ore, and to take out greatly increased 

^^ Nor, as it appears to me, can it be said that these ore banks were 
in any sense appurtenant to the other lands comprised in the partition 
of 1787. The original titles to them by warrants from the proprietors 
of May 8, 1 732, and December 2, 1737, were separate and distinct from 
those lands. A thing corporeal cannot properly be appended to a thing 
corporeal. Co. Litt. 121 b. The owners of them and the adjacent 
tracts might perhaps have limited the use of the ore to the supply of 
the furnaces erected or to be erected on the other lands then held by 
them in common. There is, however, not a word in the agreement of 
1787 wluch intimates such an intention." 

The tenants in common were liable to account to one another for ore 
taken. The act of April 25, 1850, § 24 P. L. 573, governs this case. 

" It is urged, tfowever, that before any liability to account can arise, 
it must appear that the co-tenant upon whom the demand for an account 
is made has actually taken out more than his just share or proportion 
of the entire mass of ore in the beds or banks. It might be enough to 
say that the Act of Assembly makes no such provision. It applies to 
any case where coal, iron ore, or other mineral has been or shall be 
taken from the common property. It does not say or imply more than 
a just share or proportion. The remedy would be illusory if such a 
construction should prevail. No one can tell what the just share or 
proportion of eacli tenant will be until the whole mine or bank is ex- 
hausted of its entire deposit. In such a mass — practically inexhaust- 
ible for generations to come — it would make the one ninety-sixth part 
equal to the other ninety-five, and really destroy to that extent their 
proportionate value. Here a tenant in common exercises his undoubted 
right to take the common property, and he has no other means of obtain- 
ing his own just share than by taking at the same time the shares of 
Ills companions. The value of the ore in place is therefore the only 
just basis of account. This is the same as the value of what is called 
ore leave, — that is, what the right to dig and take the ore is wortb. 
Indeed all parties, as well as the master and court below, seem eventu- 
ally to have settled upon this basis. But how is*the value of ore leave 
to be ascertained ? It is evident in the nature of things that it can 
have no general market price. It will depend necessarily upon the 
position and circumstances of each particular mine, as well as on the 
character of the ore. The value of it at the pit's mouth depends upon 
its quality and its proximity to the furnace where it is to be used, and 
on the means of transportation. In addition to this, the price of ore 


leare will be influenced by the expense and risk of process of mining 
or taking it from its place to the pit's mouth. It is evident that the 
price given for ore leave in other mines or beds can afford no safe 
criterion, unless they should be precisely similar in all respects to the 
one in question. As to the Cornwall ore banks, no sale had ever been 
made of ore leave. No evidence was laid before the master as to 
what, in the opinion of the experts, ore leave in these banks would 
have commanded in the market. The master arrived at it by ascer* 
taining the market value of the ore at the pit's mouth, and then deduct- 
ing from that the cost of mining. We cannot see, under all the 
circumstances, that any more just and equitable mode could have been 
adopted. We do not mean to say that it would hold in any other case 
than the one now before the court, — cei-tainly not where the mining 
is expensive and hazardous. Where the tenant in common of a coal 
mine, for example, must with great outlay of capital construct expen- 
sive machinery, and incur all the risks of such an undertaking, the 
value of ore leave or coal in place could not be ascertained by so simple 
a calculation. The usual profits embarked in such a hazardous enter- 
prise, with the proper allowance for personal skill and attendance, 
would seem to be no more than fair and reasonable deductions. 

''Certainly any business man, sitting down to calculate what he 
ought to give for ore leave, would take all these elements into consid- 
eration. Otherwise, with his own capital and at his own risk, he would 
6e{)arate the ore from its natural position and place it on the surface, 
enhanced in value for the benefit of a stranger. We leave the rule in 
Bueb a case to be determined when it arises." 

GmWs Ap,, 66, 117 (1870). H. B. Grubb, owning one-sixth of 
the ore banks, died, and in the partition of his real estate in 1836, it, 
including his interest in the ore banks, became the joint property of 
his two sons, £. and C. They entered into a partnership in mining 
ore and manufacturing iron and selling it. The purchase-money for 
the land was to be paid out of the ore dug. The land was not con- 
veyed to the firm, but was entered on the firm's books, and carried in 
the firm accounts. Held,, not to have been brought into the partnerr 
ship, and thatE. and C. should account to one another, not as partners, 
hot as tenants in common. 

C. contracted to sell ore from the common property to H. for a par- 
ticular furnace, to be paid for in iron from that furnace, E. declining 
to join. E. and R. afterwards bought H.'s furnace, so that he could 
not furnish iron. Held^ that the contract with H. did not run with 
the land, and E., after the purchase, was not responsible to C. on it. 

Orubb V. Grubby 74, 25 (1873). Clement and Edward owned in 
common ^^ The Mount Hope Estate/' which consisted of several tracts 
of land and one-sixth of the ''Cornwall Ore Banks." Clement con- 
veyed to Alfred his half of ''The Mount Hope Estate" designating 
the particular tracts, " together with the right, etc., so far as the said 
Alfred's right under this conveyance in said Mount Hope Furnace is 
coDoemed, of the said Clement to raise, etc., for the use of said fur- 
nace, iron ore out of three certain mine hills, etc., known as the 
* Cornwall Ore Banks,' etc., but for so long and such time only as 
ttid furnace can be carried on, etc., by charcoal." Held^ that this con- 


veyance granted to Alfred a limited privilege to take ore, and did not 
convey the corporeal estate in the mine hills that remained in Clement. 

Grubb'8 Ap,, 90, 228 (1879) . Alfred B. Grubb haying acquired title 
to the whole of Mount Hope Furnace, claimed the right to take from 
the Cornwall Banks, under his deed from Clement, a full supply of ore 
for the furnace. Clement, contending that he was only entitled tf> a 
half supply, brought a bill in equity. The court dismissed the bill for 
want of jurisdiction. 

^^ No question of waste is raised by this record. Waste is spoil or 
destruction done or allowed to be done to houses, woods, lands, or 
other corporeal hereditaments by the tenants thereof, to the prejudice 
of the heir, or those in reversion or remainder. 

*' By the act of 27th of March, 1833, P. L. 99, the provisions of the 
second section of the act of 2d of April, 1803, restraining waste, are 
extended to quarrying aud mining. But it has never been held that a 
person who is not a tenant in possession, but possessing a right to dig 
ores, is guilty of waste when he takes out more ore than his contract 
calls for. Nor does the case come within the rule of repeated trespass 
for the reason that the appellant is not a trespasser. His right to dig 
ore from the Cornwall Banks is not disputed. The question as to 
whether he has a right to a whole supply for his furnace, or only a half 
supply, is another matter, and has no bearing upon the question of 

*' The appellee is the only one of the proprietors of Cornwall who is 
a party to the bill. Even if they had been joiued as plaintiffs, the 
account is a mere matter of charge for certain number of tons of ore, 
with no entries on the other side of the account. It was clearly the 
subject of an action at law, and the appropriate form of action is 

Grubb V. Grubby 101, 11 (1882). C. B. Grubb bronght assumpsit 
for the one-half of the ore taken by A. B. Grubb to supply the Mount 
Hope Furnace. 

For the clause in said deed bearing upon this subject, see Grubb v. 
Grubby 74 Pa. 25, above. Held, that the defendant was entitled to 
the full supply. The deed should be construed most strongly against 
the grantor. This construction is also upheld by the circumstances 
surrounding this conveyance in 1845, when those who had interests iD 
the banks took all the ore necessary for their furnaces without account- 
ing, the banks being practically inexhaustible for the purposes of sap- 
plying furnaces as then worked. 

Christy's Ap,y 110, 538 (1885). In partition in the Orphan's Court, 
in the absence of a severance by the testator, the court has no power 
to order the coal and surface to be divided and appraised separately. 
Whether the inquest could make such division and appraisement is 
DOt decided. 

Fidmer's Ap,^ 128, 24 (1889). A tenant in common, who is in 
possession of mineral lands and works the same, most, under act of 
April 25, 1850, P. L. 573, account to his co-tenant for his share of 
the minerals removed. Slate is a mineral within this act. The meaa- 
tire of the compensation is the value of the mineral in place, the tme 
representative of which is the value of tiie royalty which ooold be 


olrtained for the privilege of removing the mineral. In the oondact of 
an inqniry upon this point regard shookl be had to all the circuiki- 
0(anees of the particular case, and tlie evidence should be directed to 
the special instance of the mine or quarry in question. The value of 
the royalty is to be asoertained by expert testimony. (7o2eman'« Ap., 
62 Pa. 252, was lUtc^ether exceptional, and the decision is confUied to 
tJ» particular facts under consideration. In that case there had neiier 
been any sales of ore leave at the Cornwall Banks, and there was no 
proof of the opinion of experts as to the value of such ore leave. 

Winton Coed Co. v. Pancoast Coal Co., 170, 437 (1895). Where the 
amount and value of the coal mined by one oo-tenant is undisputed, 
and the only question is whether the plaintiffs' interest is one-eighth 
or one-fourth, he may maintain an action of assumpsit in which that 
question may be determined. 

There being no question of account, the case is not within the acts 
of April 25, 1850, and April 22, 1856. 

Mercur v. State Line d SttUivan R. Co., 171, 12 (1895). In a pro- 
ceeding in equity under the act of April 25, 1850, to ascertain the 
quantity and value of coal mined by one of several tenants in common, 
tbe plaintiff is not bound by the royalty fixed in an agreement by 
which another of the tenants in common sold his interest to one of the 
defendants. The quantity and value of the coaF mined are quePtions 
of fact to be fixed by agreement or determined from the evidence. 
And a finding of a master thereon, confirmed by the court below, will 
Dot he disturbed. 

Enterprise 0. & O, Co. v. National Transit Co., 172, 421 (1896). 
A co-tenant who receives more than his Just share of the profits is 
liable to account to the other co-tenants. If he has made an express 
promise of a liquidated sum, assumpsit will lie against him; other- 
wise the only remedy is by account ft)r a share of the profits. In no 
case is his co-tenant entitled to take a share of the product. 

Several co-tenants of an oil lease assigned it to an operator for a 
share of the product, which was delivered by the assignee to the de- 
fenilsnt to the credit of the co-tenants. One of the joint owners, who 
did not join in tbe assignment, notified the defendant not to deliver 
any oil to his co-tenants. Held, the parties joining in the assignment 
were entitled to all the oil in defendant's hands. 
^ Conant v. Smith, 1 Aiken, 67 ( 1826). The court will not 

^""^^ order partition of real estate in common where the value of 
the several parts cannot be ascertained, as in the case of an ore bed. 
Kor will they, in such case, oixler a sale thereof or an assignment 
to one of tlie parties, though authorized by the statute ; but the 
proper remedy of the party aggrieved is by application to the Court 
of Chancery. 

WMtVireini Williamson v. Jones, 89, 231 (1894). Defendant 

^^*' claimed to own the land in question in fee. Plaintiffs 
diimed, and the court' so found, that they owned seven-tenths thereof 
in remainder after the death of their sister. 

Defendant being a co-owner in fee to the*extent of three-tenths, has 
**tlie right to drill wells into tbe oil strata of the inheritance and take 

his share of the oil, provided he does not take more than his share. 



Bat he is not entitled to appropriate more than his share of the prod- 
uct. This refers to his share of the net profit after deducting all 
expenses incident to the working. I should think that a co-owner who 
has expended so large a sum, entirely at his own risk, but with the 
knowledge of the other co-owners, in so hazardous an enterprise as 
developing oil in an unexplored field, ought not to do more than ac- 
covnt to them for their proportion of a customary royalty, proper and 
fair under the circumstances." 

Pending the final disposition of the case, special receivers were ap- 
|)ointed to take control of seven-tenths of said royalty, the defendant 
to continue to work the wells, he being solvent and responsible and an 
energetic, experienced, and skilful operator. 

'Wisconsin. Tipping v. Rohhiiis^ 64, 646 (1885). Same case, 71, 
570 (1888). A license by one tenant in common to prose- 
cute raining on land does not bind a dissenting co-tenant. A statute 
providing that no license to mine shall be revocable after valuable dis- 
covery unless the right be forfeited by negligence, has no application 
where the license has been given by one tenant in common without the 
consent of his co-tenant. A licensee having mined without this consent 
is accountable to the co-tenants for the value of their share of the min- 
eral taken out, less the expense of digging it out and removing it from 
the mines. 

V. Property and Rights in Mineral Oil and Natural Gas. 

Oil and natural gas are minerals iu the view of the law ; ^ but 
because of their peculiar attributes they, as the subject of prop- 
erty, differ from other minerals. They have been very properly 
and adroitly called by Justice Mitchell of Pennsylvania {WaU 
moreland Nat. Q-as Co. v. De Witty 180 Pa. 235) *' minerals fercB 
naturcBy^ owing to their fugitive and wandering existence. Oat 
of possession there Js no property in them. If they once escape 
from the land of one person into that of another, and become 
subject to the control of the latter, he may take possession of 
them and thus become their owner. As minerals, they are a part 
of the realty until they have been severed from it ; and when they 
are severed from it by artificial means, whether by the owner 
or a trespasser, they become personal property and belong to the 
owner of the soil through which they are extracted. K their 
severance is occasioned by the lawful act of another land-owner 
on his own land, whereby they come into his possession, they 
belong to him and not to the owner of the land under which 
they formerly lay, who failed to reduce them to possession. 

But they are not capable of distinct ownership inplace^ owing 

1 Act of Cong. Feb. 11, 1897. 


to their liability to escape from the place where they may be tern* 
porarily confined without, necessarily, any interference on the part 
of the owner of the soil, or others claiming through him, under 
whose land they may be found. Like water, they are not the 
subject of property except in actual occupancy, and a grant of 
them passes nothing for which ejectment will lie. The fact that 
oil and gas cannot, while in the ground, like the solid minerals, 
be the subject of an estate distinct from that in the soil, is the 
foundation of the distinction between oil and gas rights and gen- 
eral mineral rights, which distinction will be treated of at length 
under the title of *' Oil and Gas Leases," Chap. II., Div. V. 

United States Brown v. Spilmarij 155, 665 (1895). Shiras, J.: 

^^ Petroleum oil and gas are substances of peculiar 
character. Decisions of ordinai^y cases of mining for coal and other 
minerals which have a fixed sUuSy cannot be applied to contracts con- 
cerning them without some qualifications. They belong to the owner 
of the land, and are part of it so long as they are on it, or in it, or subject 
to bis control, but when they escape or go into other land, or come 
under another's control, the title of the former owner is gone. If an 
adjoining owner drills his own land and taps a deposit of oil or gas 
under his neighbor's field so that it comes into his well, it becomes his 

j^^jjj^j^ People's Chs Co. v. Tt/ner, 131, 277 (1891). The owner of 
land may sink a. well thereon and draw therefrom all the nat- 
ural gas that will naturally flow therefrom, although in so doing be 
draws gas from beneath his neighbor's land. And be may enlaige the 
flow of his well to any size and by any lawful means. *^ Water, petro- 
leum oil, and gas are generally classed by themselves as minerals pos- 
sessing in same degree a kindred nature. . . . What is said of the 
fugitive character of percolating water and of petroleum oil applies 
with greater force to natural gas." Westmoreland Oas Co. v. De TTJW, 
ISO Pit. 235, approved. 

Columbian 0. Co, v. Blake^ 13 Ap. 680 (1895). An instrument exe- 
cuted by a married woman conveying all the oil and gas under her 
separate estate with the right to erect and maintain thereon all build- 
ings and structures, and lay all pipes necessary for the production and 
transportation of oil and gas taken therefrom, is within Rev. Stats. 1894, 
Bees. 6961, 6962, prohibiting a married woman from incumbering or 
conveying her real estate, except by deed in which her husband Joins. 

The oil and gas while remaining in the earth are parts of the realty. 
Even if they were not, the additional rights to the use of the fand would 
hring this contract within the statute. 

XflntaekT ^^^ ^' ^^^' ^^ ^* ^^^°^®' ^'^^ (1854). Oil is a part 
^^' of the land ; when severed it becomes personalty, and re- 
uiains the property of the owner of the land. Defendant entered upon 
plaintiffs land, bored a well and took out oil. Held^ trover or detinue 
might be maintained therefor. 


The argument that oil, like water, was capable only of a ufiafractaaiy 
property, and was the property of whoever reduced it to hie posses- 
sion, was repudiated. 

w ^ u. Shepherd v. McCdtmorU Oil Co., 88 Hun, 87 (1885). 
If aw xorn. rpjjig ^^ ^ license to W. and his assigns. It did not 

convey to him a coi*poreal hereditament ^^ We do not understand that 
there can be any property in rock or mineral oil, or that title thereto 
Can be divested or acquired until it has been taken from the earth." 

Hugluis V. United Pipe Lines j 119, 423 (1890). Oil in the earth 
belongs to the owner of the land, and when taken therefrom by a 
wrong-doer, the land-owner's title to the same still remains perfect, 
and he can pursue and reclaim it wherever he can find it, as in the 
hands of the bailee of the trespasser. 

-, 1^ I ^»fc V- Haldeman, 68, 229 (1866). Woodward, 

i-annsyivama. ^ j . ^^ Throughout this opinion I have treated oil as 

a mineral. Until our scientific knowledge on the subject is increased, 
this is the light in which the courts will be very likely to regard this 
valuable production of the earth. But out of this results the difficulty 
of a strict classification of a right to take it as an incorporeal heredita- 
ment. If a mineral, it is a part of the land, and a right to take land 
or any part of land is not, strictly speaking, an incorporeal heredita- 
ment Nor is the right to firebote, or plowbote, or turves ; and yet 
for the want of a better classification this is treated in the law as an 
incorporeal hereditament. To the same head is to be referred these 
oil rights." 

See also concurring opinion of Woodward, P. J., in Keir v. Peterson^ 
41 Pa. 359 (1861). 

Dark v. Johnston^ 55, 164 (1867). Oil, like water, is not the subject 
of property except in actual occupaucy, and a grant of it passes noth- 
ing for which ejectment will lie. It is a right, not to the oil in the 
ground, but to the oil that the grantee may find. 

Stoughton^a ilp.,88, 198(1878). Oil is a mineral, and a part of 
the realty ; though by severance it may become personalty. Oil is not 
less part of the realty than timber and coal. It is like coal or any other 
natural product which in situ forms part of the land. Whenever a con- 
veyance is made of it, whether called a lease or a deed* it is in eflfect a 
grant of a part of the corpus of the estate, and not a mere incorporeal 

A guardian under his ordinary power to lease his ward's real estate 
has not the power to lease land with the right to bore and dig for oil 
for a term of years at a royalty. This amounts to an absolute sale of 
the oil,^ 

Westmoreland Nat, Gas Oo. v. De Witt, 130, 235 (1890). Mitchell, J. : 
^^The real subject of possession to which complainant was entitled 
under the^lease was the gas and oil contained in, or obtained through, 
the land. The learned master says that gas is a mineral, and while in 

^ ThiB expression mnst be taken to decisions in Pennsylvania, the remarks in 

mean not a sale of the oil in place as a this case on the nature of oil and property 

distinct estate, but a sale of so mnch as is therein cannot be considered aathorita* 

pnmped from the ground and converted tive. 
into personalty. In view of the later 


fide 18 part of the land, and therefore possei^ion of the land is posses- 
•ion of the gas. But this deduction must be made with some qualifi- 
eations. Gas, it is true^ is a mineral ; but it is a mineral with peculiar 
attributes which require the application of precedents arising out of 
ordinary mineral rights, with much more consideration of the principles 
involved than of the mere decisions. 

^^ Water also is a mineral, but the decisions of ordinary cases of min- 
ing rights, etc. , have never been held as unqualified precedents in regard 
to flowing, or even to percolating waters. Water and oil, and still 
more strongly gas, may be classed by themselves, if the analogy be not 
fanciful, as minerals fer<B ncUurce, In common with animals, and un- 
like other minerals, they have the power and the tendency to escape with- 
out the volition of the owner. Their ' fugitive and wandering existence 
within the limits of a particular tract is uncertain,' as was said by 
Chief Justice Agnew in Brown v. Vandergrifty 80 Pa. 147, 148. They 
belong to the owner of the land and are a part of it, so long as they are 
on ur in it, and are subject to his control ; but when they escape and go 
into other land, or come under another's control, the title of the former 
owner is gone. Possession of the land, therefore, is not necessarily 
possession of the gas. If an adjoining, or even a distant owner, drills 
his own land, and taps your gas, so that it comes into his well under 
his control, it is no longer yours, but his. 

*^ And equally so as between lessor and lessee in the present case ; 
the one who controls the gas, has it in his grasp, so to speak, is the 
one who has possession in the legal as well as in the ordinary sense of 
the word." 

Acheson v. Stevenson^ 146, 289 (1891). *'Oil is a mineral /erce 
fto^urce, and is part of the land, and belongs to its owner only so long 
as it is in the land and under his control ; and as soon as the oil left 
the land of the plaintifif and flowed on or into the lot of Mrs. Schmitz, 
it belonged to her, unless some contract or covenant existed between 
the plaintiff and her by which this rule of property in oil in situ was 

Hague v. Wheeler, 157, 324 (1893). Plaintiffs, an individual, and a 
gas company, were owners of lands in a gas basin, and had opened 
wells upon their lands from which they obtained gas in quantities suf- 
ficient for commercial use. Defendants were owners of adjoining lands 
in the same basin. At the solicitation of the gas company they opened 
wells upon their lands, but failed to obtain gas sufficient for commer- 
cial use. The object of the gas company in requesting defendants to 
open the wells was to purchase the land, and the wells were opened in 
pursuance of a negotiation entered into for that purpose, wliich after- 
wanl failed. Defendants did not plug the wells, but i)ermitted the gas 
to escai>e and go to waste. Plaintiffs entered upon defendants* land, 
and shut in the gas and closed the well. Defendants then threatened 
to remove the cap and permit the gas to escape. An injunction to 
restrain them from so doing was refused, it being held that the 
SQggestion of malice or negligence was negatived by the proof that 
defendants bad drilled the well at the request of the gas company. 

Williams, J. : " But it is said that the oil and gas are unlike the solid 
minerals, since they may move through the interstitial spaces or crevices 



io the Band rocks iu search pf an opening through which they may escape 
from the pressure to which they are subject. This is probably true. It 
is one of the contingencies to which this species of property is subject 
But the owner of the surface is an owner downward to the centre, until 
the underlying strata have been severed from the surface by sale. What 
is found within the boundaries of his tract belongs to him according to 
its nature. The air and the water he may use. The coal and iron or 
other solid mineral he may mine and carry away. The oil and gas 
he may bring to the surface and sell, in like manner to be carried 
away and consumed. His dominion is, upon general principles, as 
absolute over the fluid as the solid minerals. It is exercised in the 
same manner and with the same results. He cannot estimate the 
quantity in place of gas or oil as he might of the solid minerals. He 
cannot prevent its movement away from him towards an outlet oo 
some other person's land, which may be more or less rapid, depending 
on the dip of the rock ox: the coarseness of the sand composing it ; 
but so long as he can reach it and bring it to the surface, it is his 
absolutely, to sell, to use, tg give away, or to squander, as in the case 
of his other property. In the disposition he may make of it he is sub- 
ject to two limitations. He must not disregard his obligations to the 
public. He must not disregard his neighbor's rights. If he uses his 
product in such a manner as to violate any rule of public policy, or 
any positive provision of the written law, he brings himself within the 
reach of the courts. If the use he makes of his own, or its waste, is 
injurious to the property or health of others, such use or waste may be 
restrained, or damages recovered therefor ; but, subject to these limita- 
tions, his power as an owner is absolute until the legislature shall, in the 
interest of the public as consumers, restrict and regulate it by statute." 
TKTtkMt Virginia Wood Co. PetToleuTii Co, V. TF. Va, Transportation 
virgmia. ^^^ ^^^ ^^^ (1886). Natural gas is incapable of be- 
ing absolute property, and is the subject of qualified property only, 
belonging to him who first appropriates it. A landlord leased to his 
tenant certain premises for the purpose of taking oil therefrom at a 
fixed royalty. The tenant opened a well which produced both oil and 
gas. The former in small quantities was pumped from the well, for 
which the royalty was paid, and the latter in large quantities issued 
by its own force from the well, and was separated by the tenant, and 
by means of pipes conducted beyond the leased premises and sold or 
appropriated by the tenant for bis own use. In an action brought by 
the landlord for an account and the value of the gas, the tenant was 
held not accountable. If the tenant had attempted to. use the land to 
produce gas alone, under the terms of the lease his term would have 
been forfeited; or if the gas had not escaped of its own force, he 
would not have been permitted to pump it without the lessor's consent. 

Williamson v. Jones^ 39, 231 (1894). Oil in place among the strata 
of the earth is a part of the inheritance. An unlawful removal thereof 
is a disherison of him in remainder constituting waste, which will be 
enjoined by a court of equity. Petroleum Co. v. TransportaiUm Co.^ 
28 W. Va. 210, does not lay down a different doctrine, even as to nat- 
ural gas, so long as it is confined in the strata where it is found. It 
is only when it escapes out of the possession of the owner that the 
right of property is gone. 





L Estate in Fee Simple in Minerals in 

n. Lease of Land with Mining Rights, 
m. Incorporeal Rights to Minerals. 
IV. License to Mine, 
v. Oil and Gas Leases. 

A. Lease of Lands with Priyilege of 

digging and boring for Oil or 

B. Incorporeal Rights and Licenses 

relating to the Extraction of 
Oil and Gas. 
VI. Reservations and Exceptions. 

Though minerals undisturbed, or in place, are a part of the 
freehold, and as such usually belong to the owner of the soil, they 
are capable of separate ownership and distinct possession. When 
there is such a severance of estates, the minerals are real estate 
constituting a separate corporeal hereditament, capable of distinct 
inheritance and conveyance. There may be a further separation 
of the different strata, or of minerals of different kinds, each of 
which may have a different owner and constitute a distinct estate 
in land. Moreover, the grant of the permanent or absolute inter- 
est in the minerals effects such a severance, and is equivalent to 
a conveyance in fee of the estate in the minerals separate from 
that of the owner of the soil. 

The owner of land may likewise create an interest in the min 
erals distinct from his own ownership of the land by the creation 
of a right to take the minerals, himself retaining the property in 
them until they are severed and in the possession of the grantect 
Thus there arise two clearly distinguished classes of the mineral 
estate : First, the absolute corporeal ownership of the minerals in 
place ; and second, the incorporeal right or license to mine for 
the minerals in the earth. Lying between these is the right and 
property of one who holds land under a lease for years for the 
purpose of or with the privilege of mining. 

The instruments creating all of these interests in real estate are 
indiscriminately called ^* Mining Leases." 


I. Estate in Fee Simple in Minerals in Place. 

A conveyance of all the minerals, or a defined part or kind 
thereof, in or under a tract of land, passes an estate therein in fee. 
If the description is sufficient to contain the whale of the minerals j 
it is unimportant whether they be described as such or the convey- 
ance be of the usufructuary rights to them, provided those rights 
are equivalent to the permanent or absolute ownership. Such an 
owner has all the rights of an owner of land in fee, with the same 
remedies to assert and defend those rights and to protect his 

The ownership of the mineral is vested immediately upon the 
delivery of the conveyance. Minerals in place^ then, being land, 
are conveyed in the same manner, and are subject to the same 
rules as regards their transfer, as land is. The Statute of Frauds 
and the law governing the transfer of interests in real estate are 
applicable to the transfer of such interests in the minerals. A sep- 
arate estate in the minerals may be created not only by an affirma- 
tive grant, but also by reservation or exception in a conveyance 
of the land. (See p. 83.) 

The form of the conveyance is unimportant. It makes no dif- 
ference that it is called a lease, and that its terms are those for 
leasing real estate. If it shows an intention to convey all of the 
specified mineral in the particular land, it e£fects a sale or abso- 
lute conveyance thereof. 

If the instrument shows such an intent, it is none the less a 
sale because a term of years is prescribed within which the min- 
eral must be taken out. Nor is the nature of the grantee's estate 
changed by the fact that he fails to mine during that term. 
There is in such case a sale to him, not a lease ; but a reversion 
takes place at the end of the term to the grantor. 

The fact also that the purchase-money depends upon the 
amount of coal mined is of no moment in determining the nature 
of the estate. The question is whether all the coal is conveyed ; 
if so, there is a sale thereof. 

The rather paradoxical result of the above statement — that 
the nature of the estate is unaffected by the limitation of the 
privileges to a term of years — is apparently a fee-simple estate 
for a term of years. This seems to have deterred some courts 


from following in terms the rule as laid down in Pennsylvania. 
It seems, nevertheless, that that position is a necessary one, how- 
ever it is worked out, and it may be theoretically justified on either 
of two lines of reasoning, both of which seem to have the support of 
the court that originally laid down the rule. First, the limitation 
to a term of years may be regarded as a limitation, not upon the 
estate, but upon the appurtenant rights, without which the estate 
will be of no value. Second, the failure to take out all the min- 
eral within the specified term may be treated as a forfeiture of 
the estate. 

A limitation of the general doctrine has been made by the 
Court of Appeals of New York. By that court it is held that it 
only applies to a case in which the whole body of mineral is con- 
sidered as of cubical dimensions, and capable of description and 
separation from the earth above and around it. If, so considered, 
it is conveyed as it lies in place, a separate* estate in fee passes. 
If, however, the description or the grant is so narrowed or 
restrained by restrictive provisions that the mineral is not 
capable of being so considered, the conveyance does not have 
this effect A conveyance therefore of all the merchantable coal 
that will pass a certain screen, and which can be safely, economi* 
cally, and profitably mined, does not pass a corporeal interest in 
the coal. And if such a conveyance further contains the usual 
provision that the consideration shall be a royalty, though with a 
stipulation for a minimum amount, it is construed in that State 
to be merely an executory contract, the thing sold and the price 
to be paid being dependent, it is said, on future conditions. 

Although this distinction has not been raised in Pennsylvania, 
it may be fairly inferred from what was said both by counsel and 
the court in LiUibridge v. LackawanTta Coal Co.^ 148 Pa. 293, where 
a conveyance of all the merchantable coal in a certain tract 
passed a fee in the coal, that the reasoning of the New York 
court will not be accepted there. 

w 1*^ a«. »^ Adams v. Ore Knob Copper Co., 7 Fed. 634 (1880). 
vmtM BWtat. Q ^ ^ jj j^ ^^^ ^ c(Miveyance of '' all the min. 

end and metallic interest on the f olio wing-deBcri bed lands " passes a 
fee-simple interest in the minerals and metals, and the privilege of 
using the land as far as necessary for the specified purpose. 
Alabama. ^^^'^ ▼• &ih9(m, 84, 228 (1887). Minerals in place 
are a part of the freehold, and constitute landed property. 
They are capable of a possession separate from that of the surface. 


and may form a separate corporeal hereditament which is the subject 
of a distinct inheritance. 

jlj. . Manning v. Frazier^ 96, 279 (1880). Minerals in a mine 

under the soil are real estate capable of being conveyed like 
other real estate, and when so conveyed, capable of being inherited 
and conveyed to others. 

Where the owner of land bargains and sells all the minerals there- 
under, and grants to the vendee the right to enter and search for said 
minerals, and to dig, mine, explore, and occupy with the necessary 
structures, and to mine and remove the coal, limestone, etc., for which 
the vendee agrees to pay a stipulated price per ton for the various 
minerals removed, payable quarterly, the grantor will have a vendor's 
Uen on the minerals not mined and removed, for unpaid purchase- 
money, which he may enforce by a sale thereof. 

The stipulated price is purchase-money of the real estate, not of the 
minerals removed. It is not a collateral covenant. The payment of 
so much per ton is only a mode of ascertainment of the purchase- 
money, the amount due each quarter depending upon the quantity 
mined during the preceding three months. The fact that the coal 
may under the deed be removed si^d sold does not amount to a waiver 
of the lien absolutely, but only pro tanto as to the coal so removed. 

Consolidated Coal Co. v. Peera^ 150, 344 (1894). A lease for the 
full term of twenty-five years of the sole and exclusive right of mining 
and operating any coal on described tracts of land is not a mere 
license, and is assignable. 

^' The right granted is not limited to any particular vein or stratum, 
but extends to all coal under said, lands, and it is exclusive of the 
whole world, including the lessors themselves, and is for the full term 
of twenty- five years from the date thereof. The law, as we under- 
stand it, is that a lease of the right and privilege to mine and take 
away stone or coal from the lessors' land is the grant of an interest 
in the land, and not a mere license to take stone or coal." 
Indiana. J^^^g^^ ▼• Cool Co^ 47, 105 (1874). An agreement whereby 
A. bargains, sells, and conveys to B. all the coal, iron, lime- 
stone, fire clay and oil in, upon, and under a certain tract of land, 
granting hini the right to enter and search for the said minerals, and 
when found to remove them, together with all rights and privileges 
incident to mining, building rights, rights of way, and also the right 
to remove minerals from adjoining lands " through, over, or under 
said lands, during the continuance of this agreement," and B. agrees 
to enter and search for the said minerals, and should he find them in 
sufficient quantity to justify him to mine them, to pay within ten years 
five dollars, and yearly thereafter " during the continuance of this 
agreement " a royalty on minerals taken out, B. to have the right of 
abandoning the lands and mines at any time, — is a lease and not a 
license, and creates an estate at will. 

Kentucky Kincaid v. McOowan^ 88, 91 (1887). D., who owned 
a tract of land, conveyed to McG. two parcels within the 
same, but reserved to himself in the deeds, in the one case ** all," and 
in the other *^ one-half, of all the mines and minerals in the bowels of 
the earth," within the boundaries of the parcels conveyed. D. then 


eoDTeyed to K. the entire tract except what he had previouslj' sold. 
Hddy by the reservationa in the deeds to Mc6., D. retained an estate 
in fee> a corporeal hereditament in the minerals beneath those parcels ; 
but this estate did not pass by the deed to K. The mineral interest 
being a distinct interest from the surface right conveyed, and also 
being separated from the balance of the tract by designated bounda- 
ries, would require apt words to convey it. ^' When the mines form 
part of the general inheritance, they will, of course, be transferred 
along with the lands, without being expressly mentioned in the con- 
veyance ; but when they form a distinct possession or inheritance, a 
distinct title to them must also be established/* Bainbridge, p. 129. 

Inhabitants of Worcester v. Green, 2 Pick. 425 
(1824). The Proprietors of Worcester in 1733 passed a 
vote ^^ that one hundred acres of the poorest land on Mill Stone Hill be 
left common for the use of the town for building-stones." This was 
held not to pass the land itself, which was subsequently granted by the 
proprietors to other persons, and against whose successors in the title 
the inhabitants could not maintain trespass for cutting wood thereon. 

Wilde, J. : ^' By a grant of mines the grantee has the power to dig 
and carry away only ; the land itself does not pass, unless it be by 
feoffment and livery of seisin. . . . The grantee may maintain tres- 
pass quare dausum /regit for any wrong done him, but he has not a 
fee in the land." 

Adamy. Briggs Iron Co,, 7 Cush. 866 (1851). "We suppose it 
well settled that there may be a separate estate in mines and ores, dis- 
tinct from that of the land." The presumption that minerals belong to 
the owner of the soil **may be rebutted by evidence, showing a sever- 
ance of the mines, and a distinct estate and interest in them by grant 
or reservation." When so severed by the general owner, and thus 
constituted a distinct estate, mines are still regarded as real estate, 
and the general laws regarding real estate will apply to them. 

Cliester Co. v. Lucas, 112, 124 (1873). A grant to one and his heirs 
of all the iron ore, metals, and minerals in a described tract of land, 
with the right to enter and dig, and carry away the ores, etc. , and to 
erect and use buildings and structures for preparing it for market, and 
the right to dig wells and use water and to build necessary roads, the 
grantor ** having one year's notice previous to commencing to dig 
upon the premises," is a grant of a present estate in fee of the ore, etc. , 
and gives the grantee possession so as to maintain an action against 
a trespasser who removes the ore, although the grantee had given no 
previous notice of his intention to dig upon the premises. 
Mi hlMui Hartford I. M. Co. v. Cambria M. Co., 93, 90 (1892). 

onigan. ^^ ^^^ provisions of a mining lease the lessor ''licensed" 
the lessee to enter upon described land '' with the right to mine, ship, 
dig, and .carry away " iron ore for a term of twelve years. The con- 
ditions and covenants were that lessee should have '' tiie exclusive 
right to mine, etc.," during the term, that lessor should have possession 
of the land not occupied by lessee, that lessee should pay a royalty, 
but not less than a certain amount, and mine a fixed amount, or so 
much more as could be reasonably mined. This was not a mere 
license. Lessee had property in the minerals, and could maintain 
trover for ore mined and carried away by a trespasser. 


MiMoarl Austin v. HantsviUe Coal & Mining Co.j 72, 535 (1880), 
An instruroeat which purports, in consideration of a fixed an* 
nual rent, to lease and convey for a certain time all the coal on or under 
certain land is a lease. It authorizes the lessee to take out all the coal 
he can mine on the premises during the term, but is not a grant of the 
coal in the land. Where the lessee, under such a lease, does not enter 
upon the land, he has a mere interest to mine : he does not acquire 
possession of the land or property in the coal, and the lessor may 
maintain trespass against one wrongfully mining thereon. The exist- 
ence of the lease is no defence to such an action, nor is a settlement 
with such lessee. Even if there had been an entry by the lessee, the 
lessor might have based his action upon the permanent injui*y to the 
freehold consequent upon taking lai^e quantities of coal therefrom. 

WardeU v. Watson^ 93, 107 (1887). Minerals in place are land, and 
may be conveyed as such, and when conveyed they constitute an in* 
beritance separate and distinct from the surface. 

Hobart v. Murray, 54 Ap. 249 (1893). H. demised and leased to 
P., his heirs, executors, administrators, and assigns, certain described 
tracts of land, ^^ for mining and manufacturing puri>ose8 only, and for 
the term of five years at least from the date hereof, and until the 
mines opened and hereafter opened on any of the said lands shall be 
worked out, but to continue during the existence of mineral on said 
lands, for said purposes,'* P., his heirs, etc., to have the right to enter 
4jpon the lands, to mine, dig, explore, and bore for certain named 
minerals, to make and use the necessary works, machinery, and build- 
ings, H. to have the right to cultivate the lands, but not to interfere 
with P.'s rights. The consideration was a royalty on all minerals 
mined and delivered. This was held to be an absolute grant of the 
minerals, exclusive in the grantee. 

Wew Jersey Uartwellv. Camman, 2 Stockton's Ch. 128 (1854). 

Mines may form a distinct possession or inheritance 
ivom the surface. A bargain and sale to a man and his heirs of ^^ the 
right, title, and interest in and to all mines and minerals opened or to 
|>e opened," with free ingress and egress, for purposes of mining in i^ 
certain described tract, passes a fee simple in the mines. 

JShaw V. Wallace^ 25, 453 (1856). As a general principle a lease of 
land carries with it the mines thereon ; but this does not apply where 
there is a severance of mine and surface, and an exception or reserva- 
tion of the former. 

Suffdrn V. Butler, 4 C. E. Green Ch. 202 (1868). An instrument 
granting and conveying the right to enter upon described lands and 
take the ore and minerals thereon forever, unless none be .found within 
€orty years, though it be called a lease, is a grant in fee. 

^^ The paper itself is a strange one, not known to or devised by any 
conveyancer familiar with the common law." Affirmed in Suffem v, 
Butler, 21 Vk^. 410 (1869). 

O'Donnell v. Brehen, 36 Law, 257 (1873). An agreement by the 
owner of land to let another take the sand out of a pit fifty feet wide 
the entire length for 8650, and to give him one year's time to take \% 
out, is for the sale of an interest in lands, and is within the Statute of 


East Jersey Co. y. WrigJU, 32 Eq. 248 (1880). A license confers a 
right of property in minerals when they have been severed from the 
freehold, while a lease is the conveyance of an actual interest in the 
thing demised. 

Mew Tork Canfield v. Ford^ 28 Barb. 336 (1858). A conveyance 
to one ''and to his heirs and assigns forever" of ''all the 
mines, ores, minerals, and metals lying or being in or upon '' certain 
described land, together with the right to raise, w^ork, and carry away 
the same, the right to put up all buildings and to use all lands neces- 
sary for that purpose, and the right of ingress and egress for that 
purpose, passes a corpoi-eal hereditament, an estate of inheritance, for 
a part of which an action of partition will lie. 

Marvin v. Brewster Iron M. Co.^ 55, 538 (1874). A deed of lands 
reserved ^^ always all mineral ore now known or that may be hereafter 
known, with the privilege of going to and from all beds of ore that 
may be hereafter worked." The grantor and bis assigns owned all 
the mines, minerals, and ores upon the described land. 

Lacustrine Fertilizer Co. v. Lake Quano & Fertilizer Co,^ 82, 476 
(1880). The complaint set forth the following facts: In 1856 T. 
owned a tract of land through which the State made a cut for a 
canal, and in so doing large piles of marl were thrown up on the sides 
of the cut. In 1865 T. sold the land to S., excepting the beds and 
deposits of marl lying on both sides of the cut, and providing ^^ that 
said marl may remain on said land for a period of ten years," and 
giving the seller the right to remove it or any part of it within that 
time. In 1866 T. conveyed the marl to B., who removed portions 
thereof and subsequently conveyed to plaintiff's grantor. In 1869 T. 
again became owner of the land, and remained so until his death the 
same year. The land was then sold to E., and thereafter by him to 
defendtints, who held possession of and claimed to own the land and 
the marl. 

Held, the piles of marl were a part of the realty. By the deposit it 
became incorporated, and after as before the digging of the canal it 
was a part of T.'s freehold ; and this without regard to the question 
whether or not the State, before cutting the canal, had acquired title 
to the land. 

The exception in the deed was of an interest in the land terminable 
at the expiration of t«n yeai*s ; and if the nght of removal was not 
exercised within that period, the grantee should be held relieved from 
the burden of the exception. 

B.'s interest was real estate within the recording acts. The excep- 
tion in the deed to S. was not constructive notice after the expiration 
of ten years. 

The repurchase by T. mei^ed the reserved right to the marl saved 
from the grant to B. 

Banky. Dow, 41 Hun, 13 (1886). Where the owner *of land con* 
veys the same, *^ excepting and reserving all the oil, gas, and other 
minerals in and beneath the surface of said premises, with the exdur 
aive right to dig, bore, mine, and operate for the same," and with the 
right of way over said premises, as the same may be necessary and 
convenient for such operations, for twelve years, and with the right 


daring that period to use so much of the premlBes as may be necessary 
and convenient to erect tanks, engines, buildings, machinery, etc., for 
the purpose of such operations, and at any time to remove the same, 
and also the right to take water for use in such operations, — the in- 
terest reserved is not a mere license : it is an interest in real estate, 
and as such is subject to the lien of a judgment 

Oenet v. D. & H. Caned Co., 136, 593 (1893), reversing s. c. 122, 
505. Plaintiff, by an instrument in writing called a '^Memorandam 
of Agreement," leased ^^ to defendant, its successors and assigns, all 
the coal contained in or under" a described tract. ^^ Said coal . . . 
to include all the coal that can be economically mined or taken oat " 
from the premises. Lessee agreed to mine ten thousand tons a year 
for two years, and after that twenty thousand a year, to pay for at least 
ten thousand a year, and to pay interest on any deficit below twenty 
thousand until made up. It was further agreed that if the coal in any 
of the veins should not prove to be of a merchantable quality, or if it 
became impracticable to mine the same in consequence of extraordi- 
nary expenses in mining and cleaning said coal, or if the veins should 
prove to be of such quality or thickness that the coal cannot be mined 
and prepared for market without greater expense than is bestowed 
upon coal taken from the same veins in the mine of the party of the 
second part for the time then being, then the liability of the said 
party of the second part to mine, take, and pay for said coal shall 
cease." And in such event payment was only to be made for coal 
that could be safely and economically taken out. The consideration 
was a royalty on the merchantable coal, which term was defined by 
the contract. Provision was also made for abandoning such parts of 
the coal as should contain faults, unless lessor should direct that they 
be '^ driven," in which case a fixed sum for each fault must be paid to 
the lessee by the lessor. 

Finch, J.: The Pennsylvania cases ^' have held, until the rule must 
be deemed firmly established in those tribunals, that a transfer of all 
the coal in, on, or under a given described surface, even though taking 
the form of a lease and terminable in a fixed number of years, is a 
sale of the coal, and a grant of it in fee as a severed parcel of the 
land. The doctrine is, perhaps, most fully developed in Sanderson 
V. Scranton, 105 Pa. 469. . . . Whatsoever we may think of the 
general doctrine, one thing about it is quite obvious. It applies to 
a case, and only to a case, in which, by the terms of the agreement 
and in contemplation of the parties, the whole body of the coal, 
considered as of cubical dimensions and capable of descriptive sepa- 
ration from the earth above and around it, and as it lies in its place, 
is absolutely and presently conveyed. The thing sold must be such 
that it can be identified as land, and severed as land from the estate 
of which it .forms a part. Every case upholding the doctrine, which I 
have been able to examine, has that marked characteristic. ( Caldwell 
V. Fulton, 31 Pa. 475; Caldwell v. Copelavd, 37 id. 427; Armstrong 
V. Caldwell, 53 id. 284; Scranton v. Phillips, 94 id. 15; Sander- 
son V. Scranton, 105 id. 469, and 109 id. 588; Fairchild v. Fairchild, 
7 Cent. 873;^ Montooth v. Gamble, 123 Pa. 240; Kingsley v. Coal & 
L Co,, 144 id. 613 ; Lazarus Est., 145 id. 1.) That feature seems 


to be not merely accidental or incidental, but a vital and essential 
element of the doctrine as it is asserted and applied. But that 
featare does not exist in the present case. The broad words of the 
primary grant are, indeed, sufficient, within the cases cited, to carry 
title to the coal as land, but they are cut down, narrowed, and 
restndned by the specific provisions which follow. It is not the 
mine as such, it is not the veins or strata as such, it is not the coal 
in place, it is not even the whole of the coal, which one party con- 
tracts to sell and the other party to buy, but only some unknown and 
iDdeterminate fraction or portion of the coal which no human power 
can locate or identify as land. It is mineral product, not land, which 
is the subject of the dealing. It is to be, first, such portion of the 
coal as shall prove to be ^ merchantable,' and which equals in quality 
the average yield of the adjacent mines ; ... it is, second, to be such, 
aDd so much, as does not pass a screen with half -inch meshes ; it is to 
be, third, only so much as can be safely and economically mined ; it is 
to be, fourth, so much merely as can be mined and cleaned without 
greater expense than the mining on adjacent property requires ; it is 
to be, fifth, no more than it will be profitable to mine when the veins 
approach exhaustion.*' Then, in case a fault is encountered, it need 
not be driven if the cost would exceed $500, * ^ in which event the coal 
beyond the fault would not pass at all. The very terms of the descrip- 
tion show that nothing was further from the pui*po8e of the parties 
than a grant of the coal as land, and that the defendant company 
conld not lay its hand upon any specified cubical mass of coal and 
Bay, this is mine, as land according to the description in the deed ; for 
it could not know, and nobody could know until a future determina- 
tion, what part or portion of the vein would really pass. It will not 
meet the diflSculty to say that these restrictive clauses bear only upon 
the amounts to be paid and the method of ascertaining those amounts. 
Nothing indicates that the defendant was to have any coal that he did 
not pay for, and so by its conclusive inspection could confiscate, as 
below grade, half of the product of the mine ; and the very terms 
DBed show that they described not only what the company should pay 
for, but also what it should take. *' 

'^ The title to the coal was to pass in the future, and conditionally 
upon the existence of facts later to be ascertained. Of course it was 
absurd to provide that the company should not be liable to take a part 
of the coal when by force of the deed it took the whole at once and 
inpresentij and absolutely in fee. All the terms of the instrument 
are inconsistent with an immediate passing of the title. What was to 
pass, and what price should become payable, were both adjourned, to 
be settled by tiie developments of the future. The contract was 
executory on both sides. What and how much coal was to pass from 
the lessors and to the lessee was made dependent upon the revelations 
of the actual mining process, and what and how much was to be paid, 
depended also upon future conditions. The thing to be sold and the 
price to be paid were each alike dependent upon subsequent events, 
and the contract was therefore executory and must be treated, not as 
a deed into which no unexpressed conditions can be implied, but as an 
executory contract, the interpretation of which is open to clear and 
reasonable implications." 


Qj^ Sloan V. Furnace Co., 29, 568 (1876), The words, "reserv- 

^' ing all the minerals underlying the soil," in the granting clause 
of a deed for conveyance of land, constitute an exception of the min- 
erals from the operation of the grant ; the fee thereto remains in the 

Edwards v. McClurg, 39, 41 (1883). A bargain and sale of all the 
coal lying and being under certain premises in consideration of the 
payment of thirty cents per ton on all coal mined, grantee to mine at 
least three thousand tons annually, with the provision that he shall 
have the right to abandon the contract at any time when he should 
determine, in his judgment, that the coal in quantity, quality, and con- 
dition was no longer minable with economy and profit, is not a mere 
license, but passes absolutely to the grantee the fee of all the minable 
coal, so that no interest therein remained in the grantor which might 
be made the subject of a mortgage. 

Newark Coal Go. v. Upson^ 40, 17 (1883). A contract to sell and 
convey coal under a tract, and a grant of exclusive right to test, open, 
and remove said coal, to construct railroads and necessary buildings, 
passes title to the coal, with full right to enter and -remove the same. 
It is not merely executory. 

Pennsylvania Offerman y.' Starr, 2, 894 (1845). A lease of the 

* right to mine and take away coal from a mine is a 
lease of the mine. ^'The words are: 'The said party of the first 
part, for and in consideration of the rents and covenants hereinafter 
mentioned, to be paid and performed on the part of the said party of 
the second part, hath demised, leased, and let unto the said party 
of the second part, the right to mine and take away coal from the 
Salem vein,' etc., and a distinction is attempted between a grant of 
license to work a mine and a grant of the mine itself ; which, how- 
ever, if a distinction at all, is a very thin one. A right to use a mine 
necessarily implies a right to possess it ; and a grant of the use and 
possession, in consideration of something to be rendered, is exactly 
what constitutes a lease of the thing to be possessed" 

Logan v. Washington Co., 29, 373 (1857). Where the owner of ooal 
land has sold the coal under his land to another, the owner of tl^ 
land and the owner of the coal are each subject to a tax on real estate 
according to their several interests. But a higher value mast not be 
put upon the two interests, taken separately, t^n would have been if 
both bad continued in the same person. 

CaldweUv. FuUon, 31, 475 (1858). Coal and minerals in place are 
land, and may be conveyed as such. One man may own the surface 
and another the minerals ; both are corporeal hereditaments ; livery of 
seisin in this State being supplied by deed and registration. Minerals 
may be conveyed by words descriptive of the entire usufruct or 
dominion thereof.. A conveyance by A. of a part of his land to B.^ 
and also *' the full right, title, and privilege of digging and taking 
stone coal to any extent B. may think proper to do or cause to be 
done under any of the land now owned or occupied by the said A.," 
passes the entire ownership to the coal under all of the land ownei} 
at the time by A., and not a mere license or ser\itude. 

Harlan y. Lehigh C. A N. Co., 35, 287 (1860). A. and B. let an4 



demised to C. the right and privilege to mine and take away ooal from 
R, and S. veins and any other veins, and Q« vein in the land of the 
lessor^ to have and hold the right and privilege for three years. This is 
a grant of an interest in the land, and not a mere license to take coal. 

Caidwea v. Copeland^ S7, 427 (1860) ; s. o. 78 Am. Dec. 436. 
Mines are lands, and subject to the same laws of possession and 
conveyance. TiUe to mines, distinct from the title to the surface, 
may be made out by documentary evidence, or under the Statute of 

Brown v. Corey j 43, 495 (1862). Proceedings may be had against 
an owner of a stratum of coal as contradistinguished from the owner 
of the surface to obtain an underground right of way under the Lateral 
Bailroad Act. 

Pennsylvania Salt Co, v. Ned, 54, 9 (1866). A grant for a sum 
certain of ^* the privilege of digging stone coal and penetrating the 
hill under my land . . . and taking out coal anywhere within the 
course or bounds of my line . . . reserving only the privilege of 
taking out ooal for my own fuel," is a severance of estates passing the 
coal to the grantee. 

Brtffgs V. Davis, 81^, 470 (1875). *' All the coal in my lands to be 
kept and worked as a whole for the equal benefit of all my children 
daring their lifetime," '^ and if any die without issue, the share to go 
in equal parts to any surviving children and their lawful surviving 
children." The children took a life estate in the profits of the coal 
land, ther trust to last only to death of last survivor, after which 
children of deceased sons and daughters could take a fee in the coal, 
if any remained. There was not a perpetuity. 

Sanderson v. Scranton, 105, 469 (1884). A perpetual lease of all 
the coal beneath the surface of a certain tract, except certain specified 
portions necessary for support of buildings erected on the surface, with 
the right to mine the coal and remove the same, the lessee paying 
therefor a certain sum per ton mined, in monthly payments, but for 
not less than sixty-five thousand tons each year, with provisions for 
distress and forfeiture for non-payment, is not a mere lease, but a 
sale of the coaL The grantee owned the coal in the ground, and not 
merely what he mined and removed. A tax levied upon the land hav- 
ing been apportioned by the assessors between the surface and the 
coal, the surface owners were not liable for that portion of the tax 
levied upon the coal. A provision in the lease that the lessee should 
pay all imposts and taxes on the coal mined under the lease has no 
importance in the determination of this question. 

^^ It is one of the essential properties of a lease that its duration 
shall be for a determinate period, shorter than the duration of the 
estate of the lessor ; hence the estate demised is called a ^ term,' and 
necessarily implies a reversion. If the entire interest of the lessor is 
conveyed, in the whole or a portion of his land, the conveyance cannot 
therefore be properly regai*ded as a demise, but as an assignment." 

" It is certainly true that a lease, properly so called, always conveys 
an interest in land, and in this respect it is to be distinguished from a 
mere license ; but where that which purports to be a lease conveys the 
whole interest of the lessor, it differs in no respect from a sale." 


D.,L. & W. R, R. Co. v. Sanderson^ 109, 583 (1885). Same instra- 
rnent as in Sanderson v. Scranton. 

^^ Where it is clear that the owner of a tract of land grants the 
right to take all the coal beneath the surface^ and the grantee obligates 
himself to mine and remove all of said coal, and to pay a certain price 
per month for all coal mined, not less than a named quantity to be 
mined and paid for every year, the contract to be binding until all the 
coal under the tract is mined, and the rights, covenants, and obliga- 
tions are binding on the parties, their heirs and assigns, and executors 
or administrators, there is an actual sale of the coed. It is none the 
less a sale if the parties called the deed, and styled themselves 
lessor and lessee, and conti'acted that in case of non-payment of the 
*' royalty ' the grantor should have the right of distress, or at his option 
the riglit to forfeit the grant. A deed on such terms is not a lease at 
will, nor for a term of years, nor for life. It cannot be limited to the 
life of the grantee ; for should all the coal not be mined at the time of 
his death, his rights and obligations do not die with him. 

*' Leases are generally for a term of years. If for a long term, 
as a hundred years, though of greater value than if for the life 
of the grantee, the estate is inferior. The entire body of coal 
under a tract of land may be embraced in a lease, and the term 
be so long that in all probability the lessee will mine the whole 
of the coal. Yet a term of years is a chattel, — a transient interest ia 
the land. A lease for the life of the lessee vests in him a freehold. A 
lease of a mine, whether for a term of yeara or for life, implies the 
possibility, if not the probability, of its reversion. That the mineral 
may be partly or wholly exhausted before the end of the term is a 
result involved in the contract. It is not pretended that the instru- 
ment in question is a lease for life. No particular period is named for 
the duration of a tenancy. Then, if it is a lease, the tenancy is from 
year to year. Such tenancy is contrary to the plain intent. The sub- 
ject of the grant is coal, nothing else, save some necessary incidents 
for mining ; and when the grantee shall have performed his covenants 
tliere can be no reversion^* 

Hope's Ap,, 29 W. N. C. 365 (1886). Coal in place is land. The 
grant to mine coal in the land of the lessor and remove it, although 
the instrument may be called a lease, \a a grant of an interest in the 
land itself, and not a mere license. A grant of all the coal in a cer- 
tain seam, together with the right to mine, etc., ^' the entire amount 
or body of said coal " tot ninety-nine years for a sum certain, payable 
in instalments, is a sale of the coal. 

WeaJdand v. Cunningham^ 7 Atl. Rep. 148 (1886). A reservation 
in a conveyance of land, ' ' excepting the profits of one-half of all the 
stone coal, and of all the other kinds of minerals which may be dis- 
covered at any time hereafter," is a reservation of the corpus of all 
such coal and mineral in plaee, 

Montoothj. Gamble^ 128, 240 (1888). By articles of agreement a 
coal plant, Including chutes, tipple, sidings, and cars, with the coal 
under a tract of land, was sold and conveyed, the privilege of mining 
and removing the coal to continue not longer than a specified term, the 
coal then unmined to revert to the vendor. 


This was a sale and conveyance. It was of all the coal, and was 
exclusive in the vendees. 

Bankin's Ap.j 1 Monaghan, 308 (1888). One who has a life inter- 
est in the coal, but no interest in the surface, may mine the coal to 
exhaustion through open mines. 

(The same rules apply as in case of life estate in lands with coal or 
other minerals underlying them.) 

Fairchild v. Furnace Co., 128, 485 (1889). A written contract, 
though not under seal, by which, in consideration of a certain sum, A. 
agrees to convey to B. the right and privilege of digging all the ore on 
A.'s land, is in equity, after payment of the consideration, the equiv- 
alent of a conveyance of the title to the ore in fee. 

LiUibridge v. Lackawanna Coal Co., 148, 293 (1891). Plaintiffs 
*' granted, demised, leased, and to mine-let" to defendant *^all the 
merchantable coal, together with the sole and exclusive right to remove 
the same, under" a certain tract of land, ^' to have and to hold the coal 
in and under the said land . . • until the exhaustion thereof under the 
terms of this indenture." The defendant covenanted to prosecute the 
business of mining energetically, to pay a royalty on coal mined, but 
on at least fifteen hundred tons a year. 

Hdd^ (1) The above indenture w^s an absolute conveyance of the coal 
as land to the defendant. 

(2) The defendant acquired together with the fee in the coal the 
ownership of the space enclosing it, and the right to use it for any pur- 
pose it might see fit, and consequently to carry coal from the adjoining 
tract through it. 

Green, J. : ^^ In the opinions delivered in the foregoing and other 
cases we have emphatically decided that the coal or other mineral be- 
neath the surface is land, and is attended with all the attributes and 
incidents peculiar to the ownership of land. We have held the mineral 
to be a corporeal and not an incorporeal hereditament ; that the surface 
may be held in fee by one person and the mineral also in fee by another 
person ; that the mineral may be subject to taxation as land, and the 
surface to an independent taxation as land, when owned by a different 
person ; that possession of the mineral may be recovered by ejectment, 
and title may be acquired by adverse possession under the Statute of 
Limitations, though not by prescription, because it is not an incorporeal 
right In short, we have for nearly half a century judicially regarded 
the ownership of mineral, where it has been properly severed from the 
surface, as the ownership of land to all intents and purposes." 

KingMey v. HiUnde Goal & L Co., 144, 613 (1892). A deed by which 
the grantor grants, bai^ains, sells, aliens, enfeoffs, releases, conveys, 
and confirms to the grantee, his heirs and assigns, a tract of land, the 
possession thereof to extend only to the use of the land as a coal field, 
with power to search for coal, mine and remove it when found, etc., 
these privileges to extend to one hundred years, the consideration of 
which was $150 and the satisfaction of a certain judgment, constituted 
a sale of the ooal and not a lease. 

*^ These Instruments conferred on Meredith and his successors in 
title an exclusive right to mine and sell all the coal in the tract de- 
scribed, sabject to t^e exercise by the grantor and his vendee of the 


privilege aforesaid. It is obvious that the parties to them intended a 
sale of the coal. The sum paid for the mine right was the price of the 
coal in place^ and in London's receipt on the first contract it was called 
* purchase-money.' A grant of a mine right under which the grantee 
is authorized to remove and sell, for his own benefit, all the coal con- 
tained in the tract described, is a sale of the coal, and not a lease of it. 
It is contended, however, that the creation of a term within which the 
right is to be exercised clearly stamps the transaction as a lease. In 
Hop^s Ap.j 29 W. N. 365, the instiniment was in form a lease for a 
term of ninety-nine years, and it was held to constitute a sale of the 
coal, with a definite term in which to mine and remove it. In Mantooih 
v. OanMe^ 123 Pa. 240, the agreement was r^arded as a sale of coal, 
to be mined and removed within seven years, although it contained a 
provision that the coal unmined, if any, at the end of the term should 
revert to the vendor. Where a fair interpretation of the written agree- 
ment shows that a sale was intended by the parties, and a right to mine 
and remove all the coal is conferred by it, in express terms or by plain 
and necessary implication, it will constitute a sale, notwithstanding a 
term is created within which the coal is to be taken out We hold that 
the writings in this case constituted a sale of the coal to be mined 
within the term stated therein." 

Lazarm' Est., 145, 1 (1892). A grantor <^ demised and leased'* all 
the anthracite coal under certain landis, with the privilege of mining and 
removing the same ; the grantees '* to have and to hold the said anthra- 
cite coal . . . for and during the term of ninety-nine years," and to 
pay a fixed rate per ton for coal mined, but not less than a stipulated 
sum each year. 

The transaction constituted a sale of the coal, giving to the grantees 
an absolute and exclusive right to take all the available coal in the 
tract described ; and it was immaterial that the consideration, beyond 
the stipulated sum payable in any event, was regulated by the rate per 
ton for the coal which might be mined. 

*'*• Nor is it material that no coal has been nor may be mined within 
the terra specified. The grantee has the absolute and exclusive right, 
under the conveyance, to mine all the available coal contained in the 
tract described, and it rests with him alone whether or not there shall 
be a reversion. If he should exercise his right within the term, the 
coal will by severance have become absolutely his, and his grantor will 
have received its equivalent in cash as in the case of an ordinary sale ; 
if not, his inaction will simply amount to a voluntary forfeiture of such 
rights." *' The transaction here constituted a sale of the coal con- 
ditioned upon its being removed within the period specified ; and the 
court below was therefore in error." 

Plummer v. Hillside Coal & Iron Co.^ 160, 483 (1894). An instru- 
ment in writing t)rovided as follows: Samuel Callender doth lease 
and to farm-let to Thomas Meredith all the land that he now holds, 
and the lease is to continue for the term of one hundred years from 
this day. Possession of the leased premises shall extend only to their 
use as a coal field. The lessee shall have full power and possession to 
search for coal anywhere on the leased premises, in any manner he 
may think proper ; to raise the coal, when found, from the beds ; to 


enter and carry away coal ; and to sell the same for his own benefit 
and profit. He may occupy whatever land may be useful or necessary 
as coal yards, and in case it may prove necessary for securing the full 
enjoyment of the premises aforesaid as a coal field as aforesaid, then 
the said Samuel covenants and agrees to execute such further writings 
as counsel learned in the law may deem proper. The purchase- money 
or price of the coal was fixed at two hundred dollars. If the coal 
proved abundant and of a given thickness, then another hundred dol- 
lars was to be paid. In addition to this sum one dollar per annum was 
to be paid as a rent. Heldy that the instrument contemplated a sale 
of the coal under the leased premises at a fixed price, to be increased 
one hundred dollars if the quantity of coal reached the proportion de- 
scribed in it. 

Powell V. Lantzy^ 173, 543 (1896). The owner of the mineral estate 
is neither a tenant in common nor a joint tenant with the owner of the 
surface ; each has a separate estate. 

A sale of unseated- lands for taxes which were assessed before the 
severance of the title to the surface from that to the minerals, and a 
purchase of the whole by the owner of the surface, passes a good title 
to the whole as against the owner of the minerals. No relation of con- 
fi<lence exists between the owners of the different interests which gives 
rise to a duty which equity will enforce through the medium of a trust. 
S th C olln Massot V. Moses^ 3, 168 (1871). A. being seised in 

fee of a tract of land, in consideration of $2,000 
granted to B. " the right and privilege of entering in or upon, by him- 
self or hy his agents, all or any part of said tract," for the purpose of 
searcliing for minerals or fossil substances, conducting mining opera- 
tions to any extent he may deem advisable, and for working, remov- 
ing, selling, and appropriating " to his own use for the term of ten 
years from," etc., '' all phosphates that may be found by Siuy person or 
persons, or contained in any part of said tract," provided that B. *' shall 
not at any one time during said term engage in working over one-third 
part " of said tract *' Such one- third part to be selected by him as 
often as he may desire." The deed also contained grants to B. of the 
right to cut and remove trees and wood, such trees and wood to remain 
the property of A., and of a general right of way, with the privilege ot 
constructing railroads and other roads and machinery to be used in 
the transportation, manufacture, etc.,. of said substance, with the 
right to remove the same at the expiration of the term. Ileld^ that ^ 
this was a demise of the phosphate beds for the term of ten years, with 
the exclusive right of raising, selling, disposing of, and manufacturing 
all phosphates found during the term, and that B. had the right to 
divide his interest and convey part of it to others. 

'* The expression, ' that may be found by any person or persons, or 
contained in any part ' of the land, distinguishes this case from Lord , 
Mountjoy's Case^ Litt. 165, and shows an intent to convey an exclu- 
siye right, and not one in common merely with the grantor ; and this 
coDStmetion is aided by the fact that the consideration was an entire ^ 
6Qm demandable at the delivery of the deed, and intended as compen- 
sation for the rights granted. 

'* Unopened veins or beds of minerals contained in and below the 


surface of the soil may be demised as if they were separate pieces of 
iand. A grant for a term of years for the exclusive right to search 
for, take, sell, aud dispose of, to the grantee's use, all phosphates 
found during the term in a designated tract of land, is a demise of ore 
beds or veins of phosphate contained in the land." 
Virslnl Oowan v. Radford Iron Co., 83, 547 (1887). An agree- 

. ^^^^' ment by which the owner of land sells to another all the 
minerals under the land, with the usual mining rights and privileges, 
which are described to be the right to enter at any time with work- 
men, machinery, etc., and mine and carry away the coal, to use so 
much of the surface as is necessary for the operations, to erect the 
necessary buildings and construct roads, and to use water ; and the 
grantee agrees to pay quarterly fifteen cents a ton for all iron ore so 
taken, and is given the privilege of removing his machinery, buildings, 
fixtures, and improvements at any time, creates a tenancy at wilL^ 

Lee Y. Bumgardner^ 86, 315 (1889). A tract of land having been 
divided into separate parcels. No. 6 was conveyed to plaintiff, and 
No. 11, upon which was a furnace called Cotopaxi, to defendant. In 
the deed to No. 6 was this language: '^Subject to the right of the 
owners of Cotopaxi f urqace to raise ore from a bank or banks on lot 
No. 6." '^ To use the road leading to said ore bank or banks for 
hauling ore from said banks to said furnace, which rights were re- 
served at the time of the sale, and are hereby reserved to the owners 
of the said furnace." Held^ that the iron ore under the land remained 
the property of the vendors, who had a corporeal interest therein. 
That interest being corporeal could not be appurtenant to the furnace 
property, but a conveyance by the vendor to the defendant subsequent 
to the bringing of this action to restrain mining by defendant was a 
defence thereto. 

Lacy, J. : *^ The grant of the iron ore in the lands of the vendor is 
a grant of the substance, is a corporeal hereditament, and is exclusive. 
But the right to take ore from the lands of the vendor, being granted 
for a specific purpose or in a limited quantity, is an incorporeal here- 
ditament and is not exclusive. So the conveyance of the right to take 
ore under the grantor's tract of land is a conveyance of the entire 
ownership of the ore in place beneath the grantor's land, and the min- 
erals beneath the surface of land may be conveyed by deed distinct 
from the right to the surface, and is a corporeal hereditament that 
passes by deed." 

Barksdale v. Parker's AdnCrs^ 87, 141 (1890). In partition of real 
estate of a decedent, in order to effectuate a contract of the devisees^ 
the commissioners were ordered not to include the land and mine al- 
ready leased to certain parties, nor to take into consideration in estimat- 
ing the value of the land any minerals on any part thereof, the mineral 
rights in the whole to be retained, and held as the undivided property 
of the devisees, subject to the further order of the court. The division 
tiaving been made in accordance with this order, and the commission- 
ers' report confirmed by the court, it was held that the devisees had an 
estate in fee in the minerals, a corporeal hereditament, and not an 
easement, and that the purchaser of the part of the land allotted to 
one of the devisees acquired no right to take the minerals. 

1 8eeD. 175. 


n. Lease of Land with Mining Rights.^ 

As has been seen, a true leasehold interest in minerals in place 
cannot exist. If an estate in them passes, it is a fee. But a 
leasehold may, of course, be created in the land itself, and the 
nature of that estate is not changed by the addition, as an ap- 
purtenance, of the right to take minerals during the term. Such 
a lease raises an estate for years in the land.. The tenant's pos- 
session of and property in the minerals are the same as his prop- 
erty and possession of the soil. But he has an appurtenant right 
to remove the minerals under which the absolute ownership of 
the minerals vests in him upon removal.^ 

Such leases are of course subject to the same rules as other 
leases of real estate, with the important exception that mining, 
even from unopened mines, is not waste, but the object, or one of 
the objects, of the tenancy.^ 

TiH^^i, Oartside v. Outlet, 58, 210 (1871]). This was a lease or 
grant of land for an indefinite period, with leave and per- 
miBsion to take, under certain specified conditions, all the coal con- 
tained in the land, with a provision for forfeiture for non-compliance 
by lessee. Of this lease the court said it would expire by its own 
limitation when the coal became exhausted. 

*' The counsel does not define the nature of the estate which he 
insists is created, except to indicate that the grant is in the nliture of 
a * servitude,' to which the company's land was subject for an indefi- 
nite period. We think the fair construction to be given to that instru- 
ment is that it is in the nature of a lease, and creates only the relation 
of lessor and lessee. If, however, it can be said that it conveys the 
fee in the land, with a perpetual reservation of rent, we do not see how 
that view could aid the claim of the appellees." 

Franklin Co, v. Coal Co., 43, 518 (1890). A lease of land 
by the owner, wha is a married man, and occupies the same 
with his family as a homestead, with the privilege of prospecting for 
gas, coal, oil, and other minerals at the lessee's pleasure, and to erect 
derricks, engine-houses, and buildings necessary in mining, etc., and 
of excavating mines, and piping oil and gas, is such an alienation of 
the homestead as, under sec. 9, art 15, of the Constitution, requires 
the wife's consent. 

Ml— ^ ^^ J3b6ar< v. Murray^ 54 Ap. 249 (1898). See this case on 
^^ page 40. 

^ See pp.l5et9eq * See» however, Harlow t. Lake Supe* 

* In WiflconsiD, this sabject is con- rior Iron Co., 36 Mich. 105, ante, p. 16. 

trolled hj statute. Ann. Stats. 1889, sec. 

1647, p. 987. 


New Jersey Ackerman v. Hartley^ 4 Halst Ch. 476 (1850). A. 
^' leased to B. a certain lot, with the privilege of working 
the quarry thereon, for $250 a year, and further, by the same lease, 
agreed that he should have the use of all of A.'s right iu an undivided 
quarry on the adjoining lot. B. did not work the latter during the 
term. When the lease expired no new lease was made, but B. con- 
tinued to quarry on the former lot at a rent of $200 per year. B. was 
held to have no interest after the expiration of the lease in the adjoin* 
ing lot, and he was enjoined from mining thereon. 

Shaw V. Wallace^ 25 Law, 453 (1856). A contract to raise ore, not 
less than a certain amount per annum, from the mines on certain land, 
for which the contractor was to receive- a certain sum per ton, to have 
tools furnished, and the use of the land and buildings, may be con- 
strued as a lease of the surface, the lessee [laying the rent by labor 
in the mine. The contractor had the right of exclusive possession of 
the land and mines, and might maintain trespass against the owner 
for entering and mining. 

North Carolina. ^f^^ton v. Axley^ 5 Jones Law, 440 (1858). An 

agreement leasing land for the purpose of examining 
for minerals at a royalty, payable quarterly, the lease to continue so 
long as lessee deems it proper to operate, and to be forfeited in case 
of abandonment of operations for one year, is a lease from year to 

New York ^(^^^^ V. Hai-t, 52 Hun, 863 (1889). A lessee of lands, 

with all the exclusive rights to the premises and to quarry 
stone, has an interest in all the stone in the quarry, and may maintain 
trespass against an adjoining owner who quarries and takes out stone 
from the land. His property is not limited to the stone which he 
himself takes out. 

Pennsylvania -^^^ore v. Miller, 8, 283 (1848). " In estimating the 

language which constitutes a lease, the form of words 
used is of no consequence. It is not necessary that the terra ' lease ' 
should be used. Wiatever is equityalent will be equally available. If 
the words assume the form of a license, covenant or f^^ement and 
the other requisites of a lease are present, they will be sufficient. Co. 
Litt. 45 b; Bac. Abr.; tit. Lease K." 

An agreement that Miller should enter and dig for ore, build houses, 
etc., he to pay as a compensation to the owner of the land fifty cents 
for every ton of ore, was, in substance and fact, a lease. But whether 
it was only a tenancy at will or constituted a lease for a year, was a 
question of fact to be determined from the evidence ; and as the evi- 
dence was in pais and the alleged lease by parol, it was a fact proi)erly 
referable to the jury. 

Sheets v. Allen, 89, 47 (1879). A parol agreement that a person 
may enter on the land of another, dig ore, erect buildings, etc., for a 
consideration amounts to a lease. So of a lease of land with the right 
to dig clay. 

'* In tlie mining districts leases of lands for purposes of taking ore, 
coal, or petroleum are common, wherein the tenants are restricted to 
the use of only so much of the surface as necessary for mining pur- 
poses, with right in the lessor to use the surface as he chooses, save 


that he may not interfere with the rights of the lessee. Frequently the 
lands are unoccupied for any purpose other than the mining, and fre- 
quently they are occupied by the lessor for agricultural or other uses. 
The actual possession of the tenant, carrying on his mining operations, 
is notice of his interest to a third person as fully as is the tenancy of a 
dwelling-house. And if the lease is for a term not exceeding three 
years, it is valid, though not in writing. A parol agreement that a 
person shall enter on the land of another, dig ore, erect buildings, etc., 
and pay 'fifty cents a ton for all ore removed, amounts to a lease. 
Moore v. MUler^ 8 Barr, 272. Like principles apply to a lease of land 
with right to quarry minerals or dig clay. The right of a tenant in 
possession, under such a lease, is not extinguished in favor of a pur- 
chaser who knew the fact." 

Broion v. Beeclier^ 120, 590 (1888). A demise of land for a term 
of years, '^ with the sole and exclusive right and privilege during said 
period of digging and boring for oil and other minerals, and of gather- 
ing and collecting the same therefrom," conveys an interest in the 
land, a chattel real, but none the less a chattel. 

_. ^^^^ Ganter v. Atkinson^ 35, 48 (1874). Agent of owner of 
land by verbal contract gave plaintiff the sole right to mine 
ore in a certain part of it upon the following conditions : Plaintiff was 
to begin work at the bottom of a hole already sunk about midway be- 
tween the north and south boundaries of the land, and about two hun- 
dred feet from the east boundary, and was to run a drift quartering to 
a point on the east boundary line a little south of southeast of said 
hole. He was to have the exclusive right to work and take out all ore 
found in the drift or in the openings or crevices between the line of 
the drift and the east boundary* line of the land. He was also to have 
the exclusive right to take ores put of or to mine upon the triangular 
piece of ground bounded by a line drawn directly eastward from the 
said hole to the east line of the forty, by said east line, and by a line 
between said hole and the point where said drift was to strike the east 
line. In consideration, plaintiff was to pay one-eighth of the ores which 
he might take out It was the intention to give plaintiff a written lease 
to mine upon said land with rights as above, but this was neglected. 
This created something more than a mere license. It is not distin- 
guished from a parol lease with an exclusive right to search for lead 
ore and prosecute mining operations. It gave the plaintiff an interest 
in the land, and property in the minerals which he should find within 
the specified limits. He had a right of action against a trespasser 
who took ore within these limits. His interest was a lease from year 
to year within the Statute of Frauds. 

III. Incorporeal Rights to Minerals. 

The interest in the minerals underlying land often consists in 
rights to take the minerals, of greater or less extent, but unac- 
companied by any property in the minerals in place. These 
rights are classified as licenses — of which the next section will 
treat — and as incorporeal hereditaments or rights to minerals. 


These rights, though often spoken of as easements^ are not truly 
such, as their enjoyment consists in the consumption of the sub- 
ject of them. Though they carry with them certain easements 
necessary for their use and enjoyment, they have been considered 
as really analogous to rights of common in gross. They are not, 
however, true commons of turbary, for they are without stint, 
the dominant tenant not being limited to taking out what he may 
need for his own consumption. 

An incorporeal hereditament to mine, unlike a corporeal righty 
is not excltmve of the right of the owner of the servient tenement^ 
and in construing a grant of mining privileges their nature 
depends upon the intention to make them exclusive or otherwise. 
This seems to be the test in determining between corporeal and 
incorporeal rights. 

On the other hand, being, as they are, interests in the land, and 
not a mere permission to take minerals from the land, incorporeal 
rights difiFer from licenses in that they are irrevocable ; and the 
grantee is liable for rent whether he has exercised his right 
or not, unless, of course, the rent is a mere royalty depending 
upon the extraction of minerals. 

These rights, moreover, are indivisible, but they may be as- 
signed as a whole. Ejectment will not lie for them. They may 
be appurtenant to another piece of land, as, for example, to a 
furnace property. 

Incorporeal hereditaments, at common law, lie in grant, and 
may be conveyed by deed of grant only. Incorporeal rights to 
mine are of course subject to the rules governing incorporeal 
hereditaments, generally, and, generally speaking, a deed is neces- 
sary to pass such an interest. An attempt to do so by parol 
would at most amount to a license. 

The grantee has no title to the minerals themselves until they 
have been taken out ; he has no property to them in the ground. 
While they are in the land, his interest is a right to take them 
out. Those remaining in the ground belong to the owner of the^ 
ground. So these incorporeal rights to mine are sometimes de- 
scribed merely as mining rights^ though that term may include 
licenses and the rights of the owner of the minerals. 

The different courts, in describing incorporeal rights to mine, 
have variously, and at times simultaneously, designated them 
as "incorporeal hereditaments," "liberties,'* "privileges," and 


^licenses/' Necessarily confasion has resulted. Most of the 
courts have followed the lead of those of Pennsylyania ; but in 
the New Jersey cases, agreements by which a party is to have 
the right and pririlege of mining on certain laud are distinctly 
treated as licenses with which an interest i» coupled. 

There is no substantial difference between this interest and the 
incorporeal rights described in the Pennsylvania cases. The 
difference in nomenclature seems to have had its rise in the first 
American case in which the subject was given extensive con- 
sideration. In Gruhh v. Bayard, in the federal court of the 
circuit which embraces both Pennsylvania and New Jersey, the 
estate in question was described by the court both as an incor- 
poreal hereditament and as an irrevocable license. This case is 
cited as authority for the decisions which follow in both of the 
States mentioned, the latter term being persistently used in New 
Jersey to describe what is likewise held to be an incorporeal 
hereditament in Pennsylvania. 

The language of the court in East Jersey Co, v. Wright indi- 
cates that it is the purpose to distinguish between an incorporeal 
hereditament and a license coupled with an interest. If there 
is such a purpose, it is submitted that this case stands alone. 
The distinction is between a naked license and an incorporeal 
hereditament, the latter being an interest in the land. When, 
however, by the terms of a license, an interest is coupled with it, 
there is nothing to distinguish it from an incorporeal heredita- 
ment. Licenses proper will be considered in the next section.^ 

TT \*^ cL*^ I. Rutland Marble Co. Y.Ripley, 10 Wall. 339 (1870). 

unitea states. ^ ^^^ ^ ^^.^^ co-tenants of a tract of land, the 

former released and quitclairoed to the latter, reserving " the right to 
enter upon and take possession of the said twenty-one acres for the 
purpose of digging, quarrying, and carrying away all the marble he or 
they might want, according to the stipulations and conditions of a con- 
tract that day made and concluded between the said R. and B., in 
case the said B., etc., should refuse to fulfil the conditions and stipula- 
tions of the said contract." The contract referred to was to quarry 
and deliver marble to R. Strong, J. : *' Neither the contract nor the 
reservation in his deed gave him a corporeal interest in the marble in 
sUu, It was not a grant to him of the marble, or a grant of the right 
to quarry and take it all. If his interest was real in any sense, 
which may be doubted, it was incorporeal. Of course it was not 

^ In addition to cases here cited, see those collected below under Div. V., B., this 


exclusive of the right of the owners of the land to take marble on their 
own account ad libitum.** Lord Mounijoy's Case cited. " Other deci- 
sions asserting the same doctrine are at hand. Caldwell v. Fulton^ 31 
Pa. 475 ; Johnstown Iron Co. v. Cambria Iron Co.^ 32 Pa. 241 ; (?ian- 
inger v. Franklin Coal Co.^ 55 Pa. 9. In all of them the covenants ran 
with the land. The grants were of undoubted real interests. They 
contemplated a perpetual supply to the grantees as plainly as it was 
contemplated in this case. The rights of the grantees were not lim- 
ited as here to any defined quantity, and yet it was held they did not 
interfere with the right of the grantor to take ore, coal, etc., from the 
property out of. which the incorporeal interests issued, and to take It 
without stint." 

^ ,^ Smith V. Coolet/, 65, 46 (1884). The owner in fee of a 

a* ornia. ^^^^^ ^^ j^^^ granted to another an interest therein, de- 
scribing it as **an undivided third interest in a certain piece of mining 
ground," described by metes and bounds, " together with the water 
rights, reservoirs, and tail-race belonging to the same, and it is ex- 
pressly conditioned that this instrunlent conveys no other rights except 
a mining right on the premises above to the said party of the second 
part, his heirs and assigns." Held^ the grantor could not maintain 
partition against his grantee. " A mining right upon a specified piece 
of ground is a right to enter upon and occupy the ground for the 
purpose of working it either by underground excavation or open work- 
ings, to obtain from it the minerals or ores which may be deposited 
therein. By implication the grant of such right carries with it what- 
ever is incident to it, and necessary to its beneficial enjoyment But 
it did not convey the exclusive dominion of any portion of the ground 
80 as to make the grantee a joint tenant in common with the grantor. 
It conveys only a particular estate or incorporeal hereditament in land 
of which the grantor held the general estate."' 

This estate is in its nature incapable of partition ; it differs from a 
mining claim. 

C ctio t 0(X8ton V. Plum,y 14, 344 (1841). A., owner of a 

tract of land supposed to contain minerals, by a written 
instrument granted liberty to B. to dig or mine on such lands, and to 
carry away any minerals which he might dig thereon within one year. 
B., by writing, assigned to C. all his interest, right, and privilege in the 
land therein mentioned, with the appurtenances and all benefits and 
advantage derivable from such instrument ; after which B. brought a 
bill in chancery against A. and others for specific performance of the 
agreement. Hddj that the agreement was not of a fiduciary character, 
or in the nature of a personal confidence so as to be incapable of 
assignment, nor was the interest of B. of that uncertain or contingent 
description that it could not on that account be transferred ; and con- 
sequently that B. having parted with all his interest in the subject of 
the bill, it ought to be dismissed for that reason. 
Illinois iamphouse v. Oaffner^ 73, 453 (1874). *'A beneficial 
privilege in mines, as a license to work mines, can only be 
granted by deed." *' Every license, therefore, that authorizes such 
acts as not only require to be performed upon the land, but which 
give some usnfruot of the land itself, is properly a grant of an i/iror- 
porfial hereditamerU^ and must be created and transferred by deed,*' 


Maryland. (^^9^ v. Green, 4 Gill, 472 (1846). O. granted to R. 
^^ " the privilege of digging and moving the ore on that part 

of my (O.'s) place joining W. and R.'s at twenty-five cents per ton, 
for the privilege of ground leave, also to build a house on said land, 
the workmanship to cost, etc., the materials to be got on my (O.'s) 
land at R.'s expense." This contract confers the mere privilege of 
digging ore ; it is not compulsory in its character ; it imposed no cor- 
responding obligation on R., who might refuse to work the mine, and 
O. could not oblige him to work it. It contains no mutual or recip- 
rocal engagements, and cannot be specifically enforced in equity ; con- 
sequently there was no ground for granting or continuing an injunction 
upon its stipulations against another to whom O. had granted a privi- 
lege to mine on the land. 

Waters v. Griffith, 2, 326 (1852). In an agreement between G. and 
W. it was stipulated *' that the said G. agrees and obliges himself to 
let W. have the privilege to dig for, get, and remove chrome ore or min- 
eral from his land," etc., and '* also that the said W. shall pay unto 
the said G. the sum of five dollars for each and every ton of ore he 
may obtain and remove from said land." 

i/e/d, that under this agreement, before W. could be charged with 
the ore which he designated to purchase, it must not only be excavated 
from the earth, but actually removed from the land. Some distinct 
meaning must, if possible, be given to every word in the contract, and 
the word ^^ obtain" being sufficient to embrace all the ore that may 
be excavated and thrown out upon the surface without the aid of the 
words ^^ remove from said lands," the latter words must mean that 
the ore should be actually removed from the premises before W. can 
be charged with it. 

-- I, ♦#« Stockbridge Iron Co, v. Hudson Iron Co., 107, 290 
uasaaonusetts. ^^gyi) plaintiff granted to defendant certain land, 

reserving '^ the right of mining on the above-granted premises, for the 
use of said company, an amount of ore not exceeding 7,500 tons an- 
nually, at a duty of 87^ cents per ton, including all the facilities 
needfal for doing the same.'' 

Wells, J. : ^' The property in the mines themselves and in the ore 
they contained must be held to have passed to the grantee by the deed. 
That which is reserved to the grantor is a license to enter upon the 
granted premises and exercise certain rights therein for the purpose of 
extracting from the mines a limited quantity of the ore, and revesting 
in the grantor the property in that which is thus separated from the 
mass. But until the ore is thus separated and becomes personal prop- 
erty the title and legal possession of the whole rests in the grantee. 
The right of the Stockbridge Iron Company is an interest in the land ; 
but it does not constitute a title to any specific part of the mines, or of 
the ore contained in them, either as real or personal property. Neither 
is it sach an interest as can be made specific in any other mode than by 
the exercise of the privileges defined in the clause of reservation. 
Until then, it is undefined and inoperative." ^' But this right is not 
exclusive. There is nothing in the deed to restrict the grantee from 
working the mines at the same time, even to the entire exhaustion of 
the ore." 


iffiohi^an Hatlow V. Loike Superior Iron Co.^ 86, 105 (1877). 

^*^^*'** Owner of land leased to another the equal undivided one- 
half part thereof for a term of years for all the purposes of mining ore 
and other minerals, and for all the business of said mining, obtaining 
wood and erecting buildings necessary therefor, with the right to ap« 
propriate ores to his own use, with the reservation of thiB use for agri« 
cultural purposes of so much as was not needed for mining purposes, 
and an agreement not to sell, assign, or incumber without first giving 
lessee refusal to purchase. 

Held, that this was not a lease of land, with the additional privil^e 
of mining, but was a grant of the mining rights and privileges set foith 
in the lease, exclusive of other uses to which the lessee might have 
put the property. Before the lessee had taken possession his right was 
a mere incorporeal right which was not capable of enforcement by 
ejectment. The lease gave the lessee the right to prospect over the 
entire land, and open and work as many mines as he might deem 
proper. He might assign or convey this right to a partnership or cor- 
poration ; but he could not cut it up and parcel it out into several dis- 
tinct rights to be held by more than one person, firm, or corporation. 
The lessee^s right was not exclusive of the lessor, and did not preclude 
the lessor from granting a like right to others. 

^gM^ ^ Boone v. Stover^ 66, 480 (1877). An instrument in 
^ ' writing under seal granting permission to mine on certain 
land, so long as the grantees do regular mining work on the llind, is a 
license and a grant of an incorporeal hereditament. '^ A license which 
gives some usufruct of the land itself is an incorporeal hereditament, 
and can only be cre-ated and transferred by deed." '^As it contains 
a grant of a beneficial privilege in the land, it is not revocable except 
for breaches of covenant by the grantee." It contains in effect a 
covenant on the part of the grantor that the grantee, in respect to 
his mining privilege, shall be free from the interruption or claims of 
others. Such an instrument is not a lease ; ejectment by the grantee 
would not lie for the land. 

Taylor on Landlord and Tenant, quoted to the effect that a license 
may have the force of an incorporeal hereditament if it be valid and 
delivered ; and if granted for a consideration, it. may take effect as a 
covenant *^ So that in effect there is in this grant a covenant that the 
thing granted shall not be interrupted, although the word ^ covenant ' 
is not used." See also Desloge v. Pearce^ 38, 588 (186^)^ post, p. 70. 
New Jerse "^^^^^^ ^* Trotter, 29 Eq. 228 (1878). Trotter's rights 

ew r y. ^^^^^ from several contracts. One gave him the right 
and privilege for seven years to enter into the lands for the purpose 
of mining, and taking therefrom ten thousand tons, etc., at least one- 
seventh to be mined and taken each year ; he to pay $10 a ton, ex- 
pense of mining to be deducted ; mining to be done properly, under 
direction of the engineer of the grantor, who also reserved the right to 
mine and furnish the ores, in which case no deduction from price was 
to be made ; and also the right to mine concurrently with Trotter. 
Other contracts granted similar privileges to take out other and more 

^^The contracts merely granted a right to take ore; no estate or 



Interest is granted, and therefore they simply give a license ; but it is 
a lieen9e coupled with an interest gromng mU of expenditure made pur^ 
want to it8 requiremeni^^ and it cannot^ therefore^ be revoked at the 
pleasure of the licensor. The aathorities are agreed that a license to 
dig and take ore is never exclusive of the licensor, unless expressed 
in such words as to show that that was the intention of the parties. 
Where the license simply gives the licensee the right to dig and 
take ore, the licensor may take ore from the same mine at the same 
time, and also grant permission to others .tQ> exercise the same right.*' 
Citing Afountjoy's Case; Ohetham v. WiUidtn'sony 4 East, 469 ; Grubb 
T. Bayard, 2 Wall. Jr. 81 ; Fmk v. Ifaldeman, 58 Pa. 229 ; Stock- 
bridge Iron Co. v. Hudson Iron Co., 107 Mass. 290. The licensee 
also acquires no right to the ore until it is severed from the freehold. 

Moreover, a licensee who constructs a tunnel for mining purposes, 
under authority of the license, with his own funds, for which he is to 
be reimbursed out of the licensor's share of the profits of oi*e mined for 
their joint benefit, will be held to have an exclusive right to the use of 
the tunnel so far as is necessary to enable him to get the ore which he 
had a right to take, provided he uses reasonable diligence. But where 
the licensee's operations do not require such exclusive use, the licensor 
or his grantee is entitled to use the tunnel, but his right is subordinate 
to that of the licensee. 

Manganese Co. v. Trotter, 29 Eq. 561 (1878). In the contract, 
which in the last case was construed to be a license, the grantor re- 
served the right to mine and furnish the zinc ore to which the grantee 
was thereunder entitled. It was accordingly there held that if the 
licensor elected to use his reservation to mine and furnish ore to the 
licensee, then the licensor would have the right to the exclusive use 
of tunnel in dispute. 

The court modified its order for the purpose of protecting the licen- 
see's right to certain franklinite which was being taken out at the same 

) time with the zinc. The principle of the former case, however, remains 

I undisturbed by this case. 

! East Jersey Co. v. Wright, 82 Eq. 248 (1880). A license confers a 

right of property in the minerals only when they have been severed from 
the freehold, while a lease is a conveyance of an actual interest in the 
thing demised. 

An agreement that R and his heirs, administrators, executors, and 
assigns shall have the exclusive right and privilege of raising and 
removing ore from certain land, together with the privilege of enter- 
ing for that purpose and of erecting machinery, in consideration of 
twenty-five cents a ton for all good ore sold and removed by the joint 
consent of grantor and grantee, is a license. It is exclusive ; but the 
licensee having made uo expenditure under the license, it was deter- 
mined by the conveyance of the land by the grantor of the license. 

" The language, it will be observed, is purely promissory or execu- 
tory. 'It is agreed that R., and those who succeed to his rights, 
shall have the exclusive right and privilege,' etc. Nothing passes pres- 
ently as under technical words of grant ' dedi et concessi.* To consti- 
tute a grant it is not indispensable that technical words shall be used, 
bat they must be words which will manifest the same intention. No 


such words are foand here. The language of this instrument is equally 
inefficacious to manifest a purpose to make a demise. The technical 
words of a lease are ' demise, lease, and to farm-let,' but any others 
signifying the same intention will have the same effect. But they 
must clearly show that the lessor intends to divest himself of posses- 
sion, and that the lessee shall come into it." ^^ By force of the words 
of the instrument under consideration, unless we attribute to them a 
significance much more extensive than they have in legal science, or 
can have in virtue of their own intrinsic force, it is plain they pass 
no estate or property in the lands or the minerals deposited in them. 
They, at most, merely gave R. authority — we may say exclusive 
authority — to enter upon the lands of W., and to do a series of acta 
there for his own profit, without passing any estate or property in the 
lands. Such an authorization is a license and not a lease." 

A license being a personal privilege, is not assignable, is revocable 
at the pleasure of the licensor, and is terminated by the death of either 
party. But these rules do not apply when an interest is coupled with a 
license, or is created by an execution of it. "A license may confer a 
sole or exclusive right, or simply a right in common. If it simply con- 
fers a right to dig and take ore, or to work a mine, it is not exclusive, 
and the licensor may himself take ore from the same land or mine, or 
license others to do so. And when it authorizes the licensee to dig and 
carry away all the ore to be found in certain lands, it does not confer 
an exchisive right If it be merely a license, and no estate in the prop- 
erty or land passed, the licensee acquires no title to the ore until he has 
severed it. Such a license has been adjudged to confer a privilege 
similar to a right of common sans nombre^ to give a right without stint 
as to quantity, but not exclusive of the grantor. The authorities sup- 
porting this view will be found cited in Silsby v. Trotter^ 2 Stew. 228. 
There can be no doubt that the instrument under consideration con- 
ferred an exclusive right. The licensor has expressed his intention la 
that respect in plain words." 

'^ It seems to me to be incontestably true as a legal proposition, that 
the moment a licensor divests himself of his whole estate in the land, 
and his dominion over it ceases, any permission or authority granted 
by him to do acts upon the land, not resting in grant or demise, nor 
coupled with rights or equities arising out of acts done in pursuance of 
such permission or authority, must also cease." 

New Tork Ryckman v. GiUis^ 57, 68 (1874). Defendant conveyed 

to S. twelve acres of land, '^ reserving to the said Stephen 
C. Gillis, his heirs and assigns, the right at all times hereafter, so long 
as the clay and sand may last or be used for brickmaking purposes, the 
right to enter upon that part of the aforesaid premises which is bounded 
and described as follows, to wit: . . . Containing 175 acres, and to 
dig and take therefrom the clay and sand that may be found thereon 
fit for brickmaking. Such clay and sand is to be taken for no other 
purpose than for brickmaking, and the right to enter upon the aforesaid 
part of said premises is to be only for the digging and removing of 
such sand and clay." 

The defendant did not have title to the sand and clay as a distinct 
freehold^ but only an incoi*poreal right to dig for and take away clay 


and sand from within the boundaries of the land. Defendant, there- 
fore, did not owe lateral support to the owner of the freehold, and 
could not be enjoined from digging out sand and clay so as to cause 
the adjoining land of the owner of the freehold to fall down into the 

Baker v. Hart^ 123, 470 (1890), reversing s. c. 52 Hun, 363. A 
lease which gave to the lessee ^' the sole and exclusive right of entering 
in and upon the lands . . . for the purpose of quarrying, cutting, 
crushing, and removing stone for the term of ten years . . . but not 
to hold possession of any part of said lands for any other purpose,*' 
passes an incorporeal hereditament, ^^a right to take stone from the 
land which became theirs only upon its actual severance." What they 
did not sever remained the property of the owner of the fee. 

Where, therefore, a stranger trespassed upon the land and quarried 
and took away stone, the '' lessee " could not, as its owner, recover its 
value, though he might recover damages if he could prove that the 
trespasser so diminished the supply of stone that enough did not remain 
to satisfy his right. 

The doctrine that a tenant for years or life is answerable to the 
remainder-man for waste has no application, there being no tenancy 

Penns Ivanla. ^^^^^ v- Guilford, 4 Watts, 223 (1835). Same 
^ deed as in Gruhh v. Bayard, below. This easement or 

right is not appurtenant to the land conveyed, and would not pass by 
a sheriff's sale thereof. 

This right to dig, etc., is an incorporeal hereditament, not a license. 
It is an easement gi*anted for a valuable consideration, with no inten- 
tion that it should be appurtenant to the land conveyed. 

Grnhh v. Bayard, 2 Wall. Jr. 81 (1851). D. F., by deed, reciting 
bis title to three hundred and two acres, bargained and sold to B. 
twenty acres, with the following covenant as to the balance : '* And 
the aforesaid David, for himself, his heirs, executors, and adminis- 
trators, doth covenant, promise, and agree to and with the aforesaid 
William, his heire and assigns, that he the said William, his heirs 
and assigns, shall and may from time to time, and all time hereafter, 
dig, take, and carry away all iron ore to be found within the bounds 
of the sflid David's tract of land containing two hundred and eighty- 
two acres, provided he, the said William, his heirs and assigns, pay 
unto the said David, his heirs or assigns, the sum of sixpence per ton 
for every ton," etc. Defendant, assignee of grantor, mined on the 
said tract of two hundred and eighty-two acres. Plaintiff, purchaser 
of ninety-four ninety-ninths of interests of grantee's representatives, 
brought an action on the case. And upon verdict for defendant a 
new trial was refused, Kane and Grier, JJ., filing opinions in which 
the former speaks of tho privilege granted by the deed as " a right of 
common in gross saiis nombre,** the latter treating it as an irrevocable 

Subsequently, as a whole court, they agreed upon these propositions : 

'^1. For the purpose of the present decision we assume that the 
covenant in question contains a grant in fee to Bennet and his heirs 
for a snfiScient consideration to be paid. 


^^ 2. We decide that the thing granted is not the iron ore contained in 
the land of the defendant, but an incorporeal hereditament, a right, a 
license or liberty, well described in the plaintiffs declaration as * a 
right and pri^'ilege to dig, take, and carry away ' aU or any iron ore to 
be found in the land of the defendant. It is a license irrevocable, 
which may be demised for a term of years, or assigned in fee. 

'^ 3. That until the grantee or his assigns exercised this privilege by 
digging^ taking^ ete., iron ore found in the land, they had no property 
171 the ore that would support an action of trover for the same. 

^' 4. That the effect of the word ^ aU' in this grant is not to give an 
exclusive right as against the grantor. It describes the extent to 
which the license may be exercised, not its exclusiveness. It is a grant 
of a right to take ore without stint, and is aptly compared to & right 
of common in gross sans nombre^ which does not exclude the lord or 
owner of the land out of which it is granted. 

'^5. That such a right is indivisible^ and unless the plaintiff as as- 
signee is clothed with the whole^ he has noHdng^ and cannot support 
this suit as against the owner of the land." 

6. That Lord Mountjoy*s Case is directly in point, and rules this case. 

Johnstown Iron Co, v. Cambria Iron &o., 32, 241 (1858). A grant 
of the privilege of raising ore on the land of the grantor, at a certain 
price per ton, is an incorporeal hereditament, and not a mere license 
revocable at the grantor's wilL Such a right is not exclusive in the 
grantee, but to be enjoyed in common with the grantor, and a bill in 
equity by the former to restrain the latter from digging ore will be 

Clement v. Toungm^xny 40, 341 (1861). A., by deed, granted toB., 
his heirs and assigns, in consideration of one dollar, the exclusive 
right and privilege of searching for, digging, raising, and carrying 
away from certain land *' all the iron ore and limestone on said land, 
and also timber sufficient to enable said mines to be worked to advan- 
tage," with right for roads, room for deposit of ore, stone, and dirt, 
free ingress and egress, privilege of erecting buildings necessary for 
operation of iron-works ; B. to pay A. twenty cents for each ton of 
clean ore taken out. Held, not to pass the ownership in the ore and 
limestone. The intention was that the ore and limestone shonldvbe a 
supply to the iron-works, which it was intended B. should erect If 
the deed were construed to grant an ownership in the minerals, B. 
might hold it without erecting iron-works ; might take out the limestone 
without rendering any compensation to A. What B. took was an 
incorporeal hereditament, for which his assignee coul(f not maintain 

^^ In inquiring what was granted, we must look for the general pur- 
pose of the instrument. If under the agreement the ownership of the 
limestone and the ore became vested immediately in Hughes, he and 
his heirs might hold it forever without erecting any iron-works, or 
rendering any compensation to the grantor. Is a construction of 
the instrument which leads to such results a reasonable one? Can the 
parties be supposed to have intended it? We think not Some of 
the rights granted are confessedly incorporeal, and conditioned upon the 
erection of iron-works. The words of the premises in the agreement, 


standing alone, may indicate an intention to transfer ownership of the 
stone and mineral to the grantee, bqt against it is opposed the signifi- 
cant fact that no equivalent was to be given for either the one or the 
other until the ore should be taken, and there was no obligation even 
to take it What Hughes was to take, as well as when he was to take, 
was left all uncertain. In view of this it is hard to believe that the 
parties contemplated an immediate divestiture of ownership by one, 
and an acquisition by the other." Strong, J. 

„.^ Gloninger v. CocU Co.^ 65, 9 (1867). A grant in 1808, in considera- 
tion of (6.50 untoF., a blacksmith, his heirs, executors, administrators, 
and assigns forever, of ^^ the free right to dig coal at the coal bed under 
the foot of the mountain on my lot, with the privilege freely to carry 
the coal from the said lot, as also free ingress and regress to and from 
said coal bed through my lands at all times hereafter," creates an in- 
corporeal hereditament enjoyable in common with the grantor, for 
which or a part of which ejectment will not lie. 

^' The present case is not an exclusive right in the grantee to dig aU 
the coal^ and to any extent, and to exclude the grantor from mining 
also ; and is, therefore, not ruled by Caldwell v. Ftdton} Such a right 
is not exclusive in the grantee, but to be enjoyed in common with the 
grantor, his heii*s and assigns, and the grant is therefore an incorpo- 
real hereditament The right in the case before us is not exclusive in 
form, words, or spirit, and is simply a privilege to dig coal at a speci- 
fied coal bed and carry away the coals so taken, and not interfering in 
any way with the right of the owner of the land to mine ad libUum.** 

Grove v. Hodges^ 55, 504 (1867). An agreement by which one man 
sells to another the right to mine, take, and carry away the iron ore on 
and in the land of the former, in consideration of twenty-five cents a 
ton, is an executed conveyance of an incorporeal interest, and not a 
mere executory agreement to sell. A subsequent grantee of all the 
iron ores in the land took subject to this interest 

Johnston V. Coioan, 59, 275 (1868). Grant of the right and privilege 
to dig, mine, take, and carry away fire clay from a certain tract of land 
for twenty years ; the grantees to pay twenty-five cente per ton, and in 
the event of their not taking out 1,250 tons in six months, then to pay 
$150 every six months. jHiis is not. a mere license^ but a grant of a 
right or privilege which the parties were hound to pay for whetJier they 
enjoyed it or not. 

It was not a good defence to an action for the contract price that 
the defendant had never entered upon the land and had never mined 
any clay thereon. 

Carnahan v. Brown^ 60, 23 (1868). A testator, after dividing his 
land among his sons, furtlier devised to them '^ each an equal privilege 
forever of the coal bank now open, and the ground on the ridge adja- 
cent so far as may be necessary for digging and taking coal.'* This 
coal bank was on the land allotted to one of the sons. The will 
passed an incorporeal hereditament and an easement in the adja- 
cent land necessary to ito enjoyment Ejectment will not lie for its 

SembUf that the privilege extended to every part of the land con* 

^ See p. 44. 


taining coal which might be mined through the opening designated in 
the will. 

Coleman's Ap., 62, 252 (1869).* A man cannot have an incorporeal 
easement to dig ore in his own fee. 

^^ Nor, as it appears to me, can it be said that these ore banks were 
in any sense appurtenant to the other lands comprised in the partition 
of 1787. The original title to them by warrants from the proprietaries 
on May 8, 1732, and Dec. 2, 1737, was separate and distinct from these 
lands. A thing corporeal cannot properly be appendant to a thing 
corporeal. Co. Litt. 121 b. The owner of them and the adjacent tracts 
might perhaps have limited the use of the ore to the supply of the 
furnaces erected or to be erected on the other lands, then held by them 
in common. There is not a word, however, in the agreement of 1787 
which intimates such an intention." 

Grubb V. Grubby 74, 25 (1873). Clement and Edward owned in 
common "The Mount Hope Estate," which consisted of several tracts 
of land, and one-sixth of " three certain mine hills" known as Corn- 
wall Ore Banks. Clement conveyed to Alfred his half of '* The Mount 
Hope Estate," designating the particular tracts, " together also with 
the right, title, and interest so far as the said Alfred Bates Grubb's 
right under this conveyance in the said Mount Hope Furnace is inter- 
ested and concerned, of them the said Clement B. Grubb and Mary 
Ann Grubb, his wife, to raise, dig up, take, and carry away for the use 
and advantage of said furnace, iron ore out of and from three certain 
mine hills in Lebanon Township, Lebanon County, bounded on all 
sides by lands of Thomas B. Coleman, deceased, and known and called 
by the name of the Cornwall Ore Banks, and held as a tenancy in com- 
mon with tiie heirs of Thomas B. Coleman and James Coleman, de- 
ceased, with ingress, egress, and regress to and from the said mine 
hills and every part thereof, for the purpose only of procuring ore 
from the said Mount Hope Furnace, but for so long and for such 
time only as the said furnace can be carried on and kept in operation 
by means of charcoal." 

JIM^ that this conveyance granted to Alfred a limited privilege to 
take ore, and did not convey the corporeal estate in the mine hills that 
remained in Clement. " Without discussing at present the distinction 
between an easement and a right of profit ct prendre, we may say 
that the mining right of Alfred B. Grubb is clearly a privilege an- 
nexed by the deed of Clement B. Grubb to the interest he conveyed 
in the Mount Hope estate, and will pass with it as appurtenant thereto. 
That it is not a right of profit cY prendre in gross, is manifested by the 
terms of the grant, for it is a right only to take ore for the use and 
advantage of the Mount Hope Furnace, and the right of ingress, 
egress, and regress is confined to the purpose of procuring ore for 
the furnace, and that so long as the furnace shall be operated by 
means of charcoal. That this is not a grant of the minerals them- 
selves in place, is equally clear from the language of the grant, and 
is proved also by the cases of Funk v. Haldeman, 3 P. F. Smith, 229 ; 
Huffv. McCaulej/y id. 206; Johnstown Iron Co, v. Cambria Iron Co., 
8 Casey, 241 ; Grubb v. Guilford, 4 Watts, 223 ; Brandt v. McKeevei', 

1 See p. 25. 


6. Harris, 70; CaidweU y. FuZton, 7 Casey, 475; Washb. Easem., ec|. 
1871, p. 10. Not being either a profit d prendre in gross, or an^ 
estate in the ore itself, it must rank in that class of easements 
wherein a right granted oat of other land is expressly annexed to 

" A right of profit d prendre j which may be held apart from t^e 
possession of land, differs therein from an easement, which required' 
a dominant tenement for its existence." 

Grubb'8 Ap.y 90, 228 (1879). Alfred B. Grubb having acquired^ 
title to the whole of Mount Hope Furnace, claimed the right to take 
from the Cornwall banks, under his deed from Clement, a full supply 
of ore for the furnace. Clement contending that be was only entitled 
to a half Supply, brought a bill in equity. The court dismissed the 
bill for want of jurisdiction. 

*^ No question of waste is raised by this record. Waste is spoi) 
or destruction done or allowed to be done to houses, woods, lands, 
or other corporeal hereditaments by the tenant thereof, to the preju- 
dice of the heir, or of those in reversion or remainder. By the act. 
of 27th of March, 1833, Pamph. L. 99, the provisions of the second 
section of the act of 2d April, 1803, restraining waste, are extended 
to quarrying and mining. But it has never been held that a person 
who is not a tenant in possession, but possessing a right to dig ores, 
is guilty of committing waste when he takes out more ore than his con- 
tract or his rights call for." 

Grubb V. Grxibb, 101, 11 (1882). C. B. Grubb brought assumpsit 
for the one-half of the ore taken by A. B. Grubb to supply the Mount 
Hope Furnace. 

ITe/d, that the defendant was entitled to the full supply. The deed 
should be construed most strongly against the grantor. This con- 
struction is also upheld by the circumstances -surrounding this convey- 
ance in 1845, when all those who had interests in the banks took all 
j the ore necessary for their furnaces without accounting, the banks 

I being practically^ inexhaustible for the purpose of supplying as then 

' worked. 

Jennings v. Beale^ 158, 283 (1893). Defendant conveyed to plain- 
tiff, his heirs and assigns, in trust for a firm, for a consideration of 
140,000: Ist, Five described lots of ground; 2d, All the gas from 
certain wells; and, 3d, '^ Also the perpetual right to mine, dig, and 
carry away coal in and from all the veins of coal in and under tlic fol- 
lowing-described tracts of land," plaintiff to pay a royalty on all coal 
mined. This did not convey the coal absolutely, or exclude the 
grantor from mining. That it was not intended that the grant 
should be exclusive is shown by the omission to specify ^^ all " the 
coal, and the fact that no time is fixed for payment of royalty, and 
there is no covenant or condition requiring the grantees to mine. 

Algonquin Coal Co. v. Northern C. & I. Co., 162, 114 (1894). W., 
the owner of a tract of land, conveyed the same in 1801 to C. by a 
deed in which it was provided : " The said Thomas reserves for him; 
self, his heirs and assigns, a free toleration of getting coal fo/ their 
own use without hindrance or denial." The grantees of W. were held 
not to own the coal, but only to have a privilege to take coal for their 


own use. The title remained in those who succeeded to C.'s title, 

subject to this privilege, and they had a concurrent right to take thfe 


a^^4.u /^— :^K«- McBee v. LoftiSy 1 Strob. Eq. 90 (45). An in- 
Boutii caroima. . . . ... l-uj ^j ^ 

strument m writing which does not, and was not 

intended to, grant the soil in fee, but the use only, for the purpose of 

mining, is not a deed for the conveyance of the land, within the act of 

1795, requiring two witnesses. • 

The grantee of a right of mining who by the terms of the deed is 
bound to surrender the right at the end of a year, if he finds it un- 
profitable, and who at the end of the year indicates no intention to do 
so, cannot have his right limited to one year. 

i Where, by the terms of a grant of the right of mining, the grantee is 
entitled to work free of expense, etc., and is in no other respect re- 
stricted, he may conduct the work in any manner he thinks proper, 
either by himself, his servants, agents, or assigns. 

The right of mining can only be acquired by deed, and is not for- 
feited by non-user. 

Virginia Reynolds v. CboA:, 83, 817 (1887). A right to quarry and 
' remove all the limestone in a tract of land is an incorporeal 
hereditament, an interest or right arising out of land, and as such may, 
under Code 1873, chapter 131, section 5, constitute the foundation of 
an action of ejectment. 

Lewis, P. : ^' It was clearly an incorporeal hereditament, first, 
because it was not a mere license, as was the case of Barksdale v. 
Hairston^ 81 Va. 764, and in other similar cases there cited ; and, 
secondly, because it was not a grant of an exclusive right : Johnstown 
L Co. V. Cambria L Co,j 32 Pa. 241 ; Clement v. Toungm^n^ 40 Pa. 
341 ; Marble Co. v. Ripley^ 10 Wall. 339. Such a right has been 
compared to a grant of common sans nombre^ and is therefore an 
interest in or a right arising out of land, and as such constitutes under 
our statute a foundation for an action of ejectment"* 

fSlillett V. Tregama^ 6, 343 (1858). By written agree- 
in t G. bargained and sold to T. ^^ the right of digging 
for lead ore on a certain range, it being a sheet dipping south and 
running east and west, for the sum of five hundred dollars, granting 
the said T. privilege of following his sheet or crevice in whatever 
direction it may run," etc. And T. gave to G. " all my right and 
interest in the said ground, save the privilege of following my crevice 
a sufficient thickness for the purpose of digging and making said 




*^ The plain object and intent of this agreement appears to be not to 
create a property or estate in the land, not to sell the mines or minerals 
unsevered therein, but to sell a right, liberty, license, and privilege ta 
work, mine, and search for lead ore upon the range therein described. 
T. consequently had no property in the minerals until he had found 
and severed them. He could not maintain replevin in the cepit for ore 
dug by another." 

^ See Lee v. Bumgardner, p. 50. 


lY. Licenses to Mine. 

A grant of a privilege of mining which, if in writing, would 
constitate an incorporeal hereditament, if made by parol consti- 
tntes a license, a mere personal privilege which is unassignable, 
is concurrent with the right of the licensor to mine, is revocable 
at the will of the licensor, and vests no title in the minerals until 
they are severed by the acts of the licensee. 

It will be noticed that incorporeal rights to mine are sometimes 
spoken of as liberties and licenses, as in Chrubb v. Bayard. The 
term seems to be used (in Bainbridge, for instance) to cover all 
rights to mine which create no estate in the minerals in place^ 
just as the term ^' mining lease " has a generic sense in which it 
includes not only true leases, but all estates and rights in or to 

The broad distinction of the, classes within the genus license is 
this: — 

When a right to minerals which is not exclusive of the grantor 
is created by deedy it is an incorporeal hereditament ; when by 
paroly it is a true license. The one creates an estate in lands, the 
other a personal privilege. The confusion arising between the 
broad and narrow uses of the word "license" has occasioned 
some anomalous decisions; and in many States, indeed, it may 
be doubted whether any distinction remains .between an incor- 
poreal hereditament and a license to mine. There is, however, 
the distinction in principle, which must be insisted on if we are 
to preserve clearness in the treatment of the cases. 

A license, however, may also be created by an instrument in 
writing whose terms show an intention simply to confer a per- 
sonal privilege to take minerals as land. 

In Missouri, indeed, it is held that a license to mine being 
something more than a mere personal privilege to do an act upon 
land, passes an interest in lands within the Statute of Frauds. It 
follows that such an interest can only bo created or conveyed by 
a written instrument, and an attempt to do so by parol amounts 
only to an estate at will. Practically this latter does not at all 
differ from a true license.^ 
A license to take minerals has all the properties of any other 

^ The subject now is regulated in Missoari bj statute. Gen. Stats. 1889, secsi 


license to do a particular act or series of acts on land of the 
licensor. It is a personal privilege which is unassignable, is 
terminated by the death of the licensee, or by the conveyance 
(unless colorable), descent, or devise of the title of the licensor. 
It is revocable until some act is done or some expenditures made 
thereunder. In some States it is even then revocable.^ 

In Iowa, where the licensee has made any expenditure under 
.the license, the revocation of such a license cannot be made at 
any time absolutely, but must be preceded by six months' notice 
to the licensee, that being the notice to quit, to which a tenant at 
will is entitled at common law. As an alternative of this notice, 
however, the licensor may refund to the licensee such expendi- 
ture as he had made upon the land. This analogy of licenses to 
estates at will has also been drawn in Missouri, as was seen above. 

In Iowa, moreover, the case of Beatty v. Gregory goes to the 
length of deciding a license to be a subsisting valid interest in 
real property for which ejectment will lie. This arose from a 
failure of the court to observe the distinction elsewhere recog- 
nized between a corporeal interest in the minerals in land and 
the grant of an incorporeal privilege to mine them.^ 


United States. ^*^^''a»^ v. Morrison, 32 Fed. 177 (1887), C. C. 

E. D. Mo. An oral license or permission to take pos- 
session of a granite quarry, and work it for two years, paying there- 
for $1.50 per thousand for all granite blocks taken out ready for 
shipment, is revocable at any time by licensor's giving licensees 
personal notice of its termination and notifying them to leave the 
premises. All stone taken out previous to such revocation is the 
property of licensees, but they are not entitled to any stone taken out 
subsequent thereto. 

Canfornla ^^^eler v. West, 71, 126 (1886). A verbal agreement 
by which defendants were to enter and work a certain 
portion of plaintiff's mine if they saw fit, and to exercise their own dis- 
cretion whether they worked it or not, paying the plaintiff one-fourth 
of the gross yield of gold, did not create the relation of landlord and 
tenant. " Their right under such a contract was not in and to the 
realty, but to the gold as personalty when it should be severed from 
the land. Had it been in writing it would have given to the defendant 
merely an incorporeal hereditament, but being verbal it operated as a 
license to them to dig and mine for gold within the specified limits, 

^ In Wisconsin it is provided by stat- > In addition to cases here cited, see 
ate that a license to mine shall not be cases coUected below under Diy. V., B., 
revocable after a valuable discovery or this chapter, 
prospect has been struck by the licensee. 
Ann. Stats. 1889, sec. 1647, p. 987. 


which license protected them from a charge of trespass while in 
force, but was liable to revocation at the will of the licensors." ^^ The 
licensee has no permanent interest, property, or estate in the land it- 
self, but only in the proceeds, not as realty, but as personal property ; 
and his possession, like that of an individual under a contract with the 
owner to cut timber or hanest a crop of potatoes thereon for a share 
of the proceeds, is the possession of the owner." 
^ , ^ Omaha & Grant S. & R. Co. v. Tahor, 13, 41 (1889). 

A license to dig ore given by one tenant m common ex- 
tends only to his interest in the mine. Evidence that a mine owner 
being informed that persons had entered on a mining claim conflicting 
with his, under order of court, and were taking his ore, consented that 
another person should join them, does not establish a license as to 
those already engaged in mining there. 

-jj. . Kampkouse v. OaffneVy 73, 453 (1874). A parol license 

is a protection against an action for trespass before its revo* 
cation. It is revocable at any time at the will of the licensor, and a 
subsequent conveyance or leasing by him works a revocation. Such a 
license t^ only personaly and lasts only so long as the land belongs to 
the grantor, or so long as he permits its exercise. It is irrevocable 
only when it is fully executed and not depending on continuous acts. 
An expenditure incurred or valuable consideration given will not 
avail to make it less revocable. 

One who has a parol license to mine for lead on his licensor's land, 
and enters upon the land, discovers the crevice or range in which the 
lead is, opens it and runs a drift, expending a large amount of money, 
does not thereby acquire a right to continue to mine as against the 
owner or his lessee. 

Manning v. Frazier^ 96, 279 (1880). A license to mine, remove, 
and sell coal at a certain price per ton is not assignable. 
. BualiY. Sullivan^ 3 Greene, 344 (1851). Under a parol 

license to work upon and prove mineral land for a share of the 
mineral raised, where the licensee has made an expenditure in sinking a 
shaft, mining drifts, etc.^ the license cannot be revoked without refund- 
ing the expenditure, or giving the licensee at least six months' notice, 
that being the notice to quit to which a tenant at will is by the common 
law entitled, and being given as an alternative to refunding expendi- 
ture, in order to give time to make the improvements available. 

Although such parol license is within the Statute of Frauds, still, 
when connected with such improvements to prove the ground, it is 
voidable only upon such compensation or notice. 

Beatttf v. (iregortfy 17, 109 (1864). A parol license to enter upon 
mineral lands and mine the same for a specified share of the mineral 
raised, for an indefinite term, under which the licensee has entered 
and expended labor and money in sinking shafts, running drifts, pro- 
caring machinery, and other preparations for mining, can be termi* 
nated by the licensor only by giving the licensee compensation for 
Boch expenditure, or the notice necessary to terminate a tenancy at 
will. The licensee has a ^* valid subsisting interest in real property 
and a right to the immediate recovery thereof," and under the statute 
the licensee may assert his right of possession against the licensor or 
his subsequent lessee with notice, by ejectment. 


Upton V. Brctzier^ 17, 153 (1864). A parol license to mine upon a 
certain tract for a share of the minerals raised, will not, unless clearly 
expressed or necessarily implied, be held to be exclusive. 

Such a license, unaccompanied by actual possession or the expendi- 
ture of money or labor thereunder, may be revoked or countermanded 
by the licensor. And this right of revocation may be exercised so far 
as it concerns a particular range or lode on the land concerning which 
the licensee has made no expenditure. 

Anderson v. Simpson j 21, 399 (1866). A parol license to mine, under 
which licensee entered into possession, and which is also established 
by the evidence of the licensor, is exempted from the application of 
the Statute of Frauds. Such exemption is gained by a parol license 
to mine accompanied by possession, but the possession to be available 
must be ostensibly and actually taken under and by virtue of the 
license.. It must have the actual or implied consent of the owner. 

Harkness v. Burton^ 39, 101 (1874). A parol license or lease of 
mining lands is valid, and can be terminated only by compensation to 
the licensee or the notice necessary to terminate a tenancy at will. 
Such license is good against a subsequent lessee or licensee with 
notice ; such notice is to be inferred from the fact that the licensee 
conducted his mining operations within sight of the place where the 
subsequent lessee was at work. 

A license to remove mineral from land occupied as a homestead, 
when its enjoyment for the uses of a homestead is not thereby 
impaired, may be given by the husband without the assent of the wife. 
If her consent were necessary to give validity to a parol license it 
would be presumed, if she had full knowledge of the work done or 
expenses incurred thereunder, and made no objection. 

Barry v. Worcester, 143, 476 (1887). A license to 

aasac use . ^^^^ upon land and take away gravel is revoked by 
an unqualified grant of the land. But where the conveyance is color- 
able, as a conveyance to a son or wife, and the possession and control 
remains in the licensor, and the licensee enters u|^)on the land and con* 
tinues to take the gravel unmolested, an action therefor may be main- 
tained by licensor. 

Missouri ^^^loge v. Pearce, 38, 588 (1866). *« A parol license or 
mere verbal privilege carries no interest in the land, and 
is a mere authority or privilege to do some particular acts upon the 
land of another. But a license to work mines is quite a different thing. 
It confers not only a right to enter and occupy, but to commit waste 
and carry away a part of the realty itself, and it is therefore an inter- 
est in lands, tenements, and hereditaments which is cleauly within the 
Statute of Frauds, and must, in order to be effectual to give any per- 
manent inheritable interest in itself, or any right to a continued and 
perpetual possession, be put in writing, and signed by the parties, or 
be given by deed ; otherwise it can have no greater force or effect than 
to create an estate at will only, either at law or in equity.'' 

*^ A parol license cannot be made the foundation of any right or 
interest in real estate, or to the future continuous possession thereof, 
nor to the continuation of the privilege beyond the will of the land- 
owner. It is essentially countermandable or revocable at will." 


Sach a licensee is DOt a trespasser, and is protected from liability 
tot what he does ander the privilege, and for not replacing or restoring 
what has been changed under the privilege. 

He may remove his fixtures and machinery when the license is ter- 
minated by notice. 

That a licensee to mine had not worked the mine long enough to 
reward him for labor and expenditure will not prevent a revocation of 
the license. 

Lunaford v. La Motte Lead Co.^ 54, 426 (1873). The proprietors 
of Mine La Motte, a large tract of mining land, promulgated rules and 
regulations by which those who desired to mine on the land, by sign- 
ing the same acquired the right to do so under the provisions of the 
rules and r^ulations for the term of ten years from August, 1838. 
At the expiration of this term the agent of th^ proprietors made an 
agi-eement called ^^ Register No. 3," by which miners might continue 
to mine upon subscribing this register or agreement upon the condi- 
tions therein stated. One of these conditions was that the agreement 
was to be subject to, and revocable by, the future actions of the 

Where the miner, after notice to cease mining and yield up posses- 
sion of the land used and mined by him, resumed work and extracted 
mineral, without the consent of the proprietor, he was a wrongdoer, 
and acquired no title to the mineral raised. 

ChynowUck v. Granby Mining & Smelting Co,y 74, 173 (1881). 
Where an owner of mining lands complies with requirements of 
sec. 6441, Rev. Stat., and keeps posted in a conspicuous place, etc., a 
statement of the terms, conditions, and requirements upon which his 
land may be mined, among which were provisions that no right, title, 
or interest to the land or minerals should be acquired or owned by the 
persons mining, and that the lead delivered or money paid to the 
miners was not to be considered as the price of the ore, but compensa- 
tion for labor and services, and, upon a violation thereof, or a failure 
to carry out such conditions, etc., the miner should forfeit all rights, 
and the owner might resume possession without notice to quit or action 
taken, the miner works under a license revocable on condition broken, 
and has no such interest in the land as will enable him to maintain an 
action for unlawful detainer and recovery of possession. The evidence 
showed that the miner had broken the condition and been ordered 
and then compelled to quit. 

Nega v. Barber AsphaU Paving Co., 17 Ap. 294 (1885). An 
agreement between a laud-owner and a paving company gave the latter 
the right to quarry and remove from the land such stones as might be 
used in paving certain named streets, the company agreeing to pay 
'^SlOO per month, commencing July 16, while they are taking stone 
from this quarry." 

The company paid two months' rent, but never quarried any stone. 
They were held not liable for any further sum. 

This agreement was not a lease, but a mere license to get out cer- 
tain minerals which did not displace the owner's general possession. 

Garvey y. Gunther, 51 Ap. 545 (1892). Rules posted in accord- 
ance with Rev. Stat. 1889, sec. 7034, provided for forfeiture on failure 


to work lots for six days. This was binding on lot holders, and sach 
a failure was a bar to an action for unlawful detainer. 
' By the terms of the statute the plaintiffs must be considered to 
have accepted the conditions contained in the statement or rules. 

Robinson v. Troup M. Co., 55 Ap. 662 (1893). When the land- 
lord of mining lots fails to post the statement required by Rev. Stat. 
1889, sec. 7034, the tenant's lease will under section 7035 expire at 
the close of three years, and a sub-tenant who during the three years 
bought the landlord's title takes at the expiration of that time, free 
ifrom the claim of his immediate lessor. 

Springfield Foundry & Mach, Co. v. Cbte, 130, 1 (1895). Persons 
mining for zinc or lead ore on the land of another, subject to the 
printed statement of the terms, conditions, and requirements imposed 
by the owner, as provided for in Rev. Stat. 1889, sec. 7034, have no 
'estate or interest in the land or in any of the ore until it is mined. 
They are licensees. 

-^ ^Y , Cahoon V. Bayaud, 123, 298 (1890). By an agree- 

^ew or . jjjgjj^ between plaintiff and defendant's grantor, it was 
provided that the former should ^^ have the right to enter upon the 
premises . . . with men, teams, and tools for the purpose of pros- 
pecting and examining for mines and minerals, and to dig, carry 
away, and test such portions, etc., as he may think proper, . • . and 
if he, after making such examination and test, etc., shall be of opin- 
ion that they are worth working, he shall then have the right to go on 
and dig, caiTy away, and cause to be worked such of the substances 
there found." The expenses were to be borne by plaintiff, and the 
agreement was to ^^ bind the heirs and assigns of the respective par- 
ties." This instrument conveyed no title to the land to the plaintiff. 
It gave him ^^ a license or authority to enter upon the lands for the 
specific purpose of prospecting for minerals, and of extracting and test- 
ing the ores," and if he thought them worth working, he had an option 
which he could enforce ; but in oi'der to acquire an interest in the land 
it was necessary for him to declare his election to exercise his option^ 
Vhen he would be in a position to compel a conveyance. In the mean 
time he only had a license which was a peraonal privilege and not 

, For twenty years plaintiff visited the land yearly, and did some 
prospecting, but nothing more. At the end of the ten years the land 
was sold to defendant. Held, that the licensee was bound to define 
his position towards the owner of the land as soon as it was fairly 
possible. ^^ Fair dealing required of him to take the requisite steps, 
^nder his agreement, within a reasonable time. No time being speci- 
fied in the instrument, the law affixed to it the obligation of proceed- 
ing within what would be deemed a reasonable time." The licensee 
having failed to do so, the land-owner had a right to revoke the license, 
and the conveyance of tfie land was such a revocation. 
Penns Ivanla -^"JT v. McCauley, 53, 206 (1866). A verbal agree- 
^ ^ ^" ment, by which the owner of land, under which there 
was coal, allowed his neighbor to take coal out through his own land 
for his own use, if the former might use the latter's drift and scaffold 
to take out coal for himself, is either a license, an easement, an inter* 


est in the land, or an incorporeal right arising out of it If it was 
any of the last three, it was within the Statute of Frauds, and conse- 
quently a parol agreement would not be effective in transferring them. 
If it was a license, then it was revocable unless the licensee had ex- 
pended money under it, in which case he must be put in statu quo 
upon revocation. 

Neumoyer v. Andreas^ 57, 446 (1868). A. leased a tract of land 
to N. for ten years for the purpose of mining, etc. Afterwards, dur- 
ing the lease, A. and N. entered into a contract by which it was 
agreed that if N. would sink a well, plank it, and put in a pump and 
engine, be should he entitled to dig all the ore on A.'s land, paying 
twenty-five cents a ton therefor. 

N.'s right, under this contract, was a license casing with it only 
the right to the qualified possession, such as would enable him to dig 
and take away the ore. It was no defence to proceedings by A. to 
regain possession at the termination of the lease. 

^^ It falls not within the principle of Caldwell v. Fulton^ 7 Casey, 
475, but rather within the decision Tlte Jbhnstoiun Iron Co. v. Cambria 
Iron Co. J 8 Casey, 241, and Clement ds Masser v. Youngmaii & Wal- 
ter^ 4 Wright, 341. It resembles Caldwell v. Fulton in this, that the 
right to dig ore extends to all the ore upon the land, but it differs 
from it in the fact that no consideration passed to support a present 
conveyance of all the ore. That was a formal conveyance for a pres- 
ent consideration ; this is a mere contract for the ore at twenty-five 
cents for each ton which might be dug. The well, pump, and engine 
were but the means to be used in reaching and lifting the ore. If the 
title to the ore itself passed, then the plaintiff must be deemed to have 
parted with it forever, without compensation, until it should suit the 
defendant to dig and pay for it Having no express covenant com- 
pelling the defendant to dig a certain quantity or to mine it within a 
given time, the plaintiff has no adequate means of enforcing compen- 
sation, and no measure to fix its amount." 

Tougkioghetiy R, Coal Co. v. Pierce^ 153, 74 (1898). Testator by 
his will provided as follows: *^ To my second son, John, I give and 
bequeath the farm or plantation he now occupies, to be enjoyed by 
him, his heirs and assigns forever, with free privilege of taking what 
coal he wants for his own use or plantation off the home plantation." 
When the will was made, there was an open mine on the home planta- 
tion, but there was none on the farm occupied by John. Held, that the 
privilege of taking coal from the home plantation was personal to John, 
and did not pass to his successors in title to the land devised to him. 
virdni Barkadaley. Hairston^ 81, 764 (1886). A provision in 

^^ ' an agreement that a partnerahip should have " the exclu- 
sive use and privilege of digging, hauling off, and working any ore now 
found, or which may hereafter be fpund, anywhere on said land,'* 
confers a mere license, and creates no estate or easement in the land. 
If no acts are done under this license, it is revocable, and a dissolution 
of the partnership works a revocation. 

Hodgson v. Perkins^ 84, 706 (1888). An agreement by which. the 
owner of a farm bargained and sold the privilege of digging and work- 
ing for gold thereon, for a share of the product, reserving the right to 


cultivate and use the land, provided he did not molest or interfere 
with the lessees in searching or working for gold or other metals, the 
lessees to have and hold the land so long as they may deem it worthy 
of searching and working for gold or other metals, creates a personal 
privilege which is not assignable and is terminated by abandonment. 
Wis nsin Tii)ping y. BobbinSyU^UG (1885). Rev. Stats, of Wis., 

^^ * sec. 1647, provides that '^ no license or lease, verbal or 
written, made to a miner shall be revocable by the maker thereof after 
a valuable discovery or prospect has been struck, unless the miner shall 
forfeit his right by negligence such as establishes a forfeiture accord- 
ing to mining usages." Actual entry is not necessary in order to make 
a license irrevocable under this statute. If licensee working on an 
adjoining tract strikes a mineral-bearing crevice which is absolutely cer- 
tain to run into the land which is the subject of the license, the license 
becomes thereby irrevocable,, and the licensee may work the mineral. 

A license by one tenant in common to prosecute mining on the land 
would not bind a dissenting tenant. 

Tipping v. Bobbins^ 71, 507 (1888). The above-quoted statute has 
no application where the license has been given by one tenant in com- 
mon without consent of his co-tenant. Licensee having mined without 
this consent is accountable to the co-tenants for the value of their 
share of the mineral taken out, less the expense of digging it out and 
removing it from the mine. No allowance was made, however, for. 
mining the level into plaintiff's ground. 

BUndert v. Kreiser^ 81, 174 (1892). Rev. Stats., sec. 1647, provides 
that a parol license to mine on lands shall not be revocable ** after a 
valuable discovery or prospect has been struck." Where, however, 
upon a joint discovery of ore by the owner of land, his son, and 
another, an oral arrangement is made, and upon prospecting there- 
under ore is not found in paying quantities, the interest of the last is 
only a right to mine under a revocable license. He has no interest in 
real estate, and having sold out his interest to another who subse- 
quently discovers ore in paying quantity, the interest of the latter is 
not subject to the lien of a judgment against the former. 

V. Oil AND Gas Leases. 


Oil and gas, from their peculiar nature, which has been fully 
explained above (see p. 30), are incapable of being the subject of 
corporeal real interests. Oil and gas leases must, therefore, take 
upon themselves one of three fonns : — 

A. A lease of lands with the privilege of digc^ing and boring for 
oil or gas. B. An incorporeal right to dig and bore, or a license 
to do so with an interest. C. A simple license or personal privi« 
lege to dig, bore, and appropriate the oil and gas.^ 

1 -In New York the nature of property ch. 372, p. 1. See Bank ▼. Dow, 41 Hun* 
in oil under oil leases is governed by 13 ; Broman v. Young, 35 Hnn, 173. 
statato. Act May 10, 1883; Laws 1883, 


A. Lea%e of Lands with the Privilege of digging and boring for 

Oil or Gas. 

A lease of lands with the privilege of taking oil and gas, or for 
the purpose of doing so, is, of course, a corporeal interest in the 
lands. It is like any other lease of lands, a tenancy for years, 
the mining privilege being exercised under express powera and 
covenants conferring them. 

The tenancy is subject to the ordinary law of landlord and ten- 
ant ; the mining privileges are governed by the law of contracts, 
and the rules applicable to mining rights generally. 

Such a lease gives to the lessee the exclusive possession of the 
land itself, and an exclusive right to take the oil or gas. It 
results from this, as will be seen, that a lease of lands for the 
purpose of boring for oil or gas, which contains a provision 
restricting tlie possession of the land, is only a grant of a right to 
take oil, and belongs to the class of leases discussed in the next 

The taking of minerals is a lawful act, and is not, as in the 
case of an ordinary lease of the land, waste. The lessee has the 
same right to these minerals as the lessee of land for the purpose 
of cultiyation has to the crops prodyced from the land. 

As was said in Wettengel v. Q-ormley^ 160 Pa. 559, such a lease 
partakes of the character of a lease for general tillage rather 
than that of a lease for mining or quarrying the solid minerals, 
and a division of the land subject to such a lease does not vest 
the right to the rental or royalty in the owner of the part upon 
which the well is sunk, but that right is joint in the owners of 
all the parts, the oil being the produce of all, though taken out 
through one only. 

Where such a lease is made of land which is not known to 
contain oil or gas, it may be merely a lease for the purpose of 
prospecting, or in some cases merely an option, and may be ter- 
minated by abandonment. 

^ - . Chicago & Allegheny Oil & Mining Co, v. U. S, 

rennsyivania. p^^^^^j^^ Qo., 57, 83 (1868). An agreement to lease 

land for a term of years with the exclusive right to bore for and col- 
lect oil, giving one-fourth to the lessor, passes a corporeal interest. 
It is a lease of the corporeal tenement, with the added exclusive rights, 
etc. The taking by the lessee of his share of the oil is not waste, but 
a lawful act, unless the lease be forfeited by its own terms. 


StouglUon*8 Ap,, 88, 198 (1878). See p. 32. 

Bronson v. LanCy 91, 153 (1879). By four separate deeds B. granted 
and sold to C, D., E., and F. fractional parts "^ of the oil and mineral 
right, saving and excepting lead ore, of, in, and to" certain described 
tracts of land, ^' together with the right to enter upon said premises, to 
dig or bore for oil or other minerals, saving and excepting lead ore ; 
free right of ingress and egress ; the right to erect such and so many 
derricks, engine-houses, and other structures as may be needful in the 
legitimate business of prospecting for, producing, and transporting oil 
or other minerals ; the right to use so much of the timber growing on 
the said land as may be needful for fuel in operating the same, and such 
timber as may be required for the erection of derricks and engine-houses 
on the same. The right hereby conveyed, and the privileges therein 
annexed, to continue for a term of ninety-nine years from the date 
hereof, and then to revert to the grantor herein, his heirs or assigns." 
Rigiits of entry for purposes of tillage and of removing the timber 
are also reserved. '^ Under these deeds the grantees were tenants in 
common. They were not mere grants of an incorporeal right to dig 
and take in common with the grantor to which the principle of Lord 
Mountjoy's case applies. . . . Very plainly there is an express grant 
of exclusive occupation of so much of the land as was necessary for 
the enjoyment of the thing granted. 

^^ It has been objected that upon so broad a construction the grantees 
might sink a well on every acre of the land, and thus effectually de- 
prive the grantor of the entire surface. This might be so, but prac- 
tically it was in the highest degree improbable. The grantor evidently 
had no such fear, and if he had, should have provided against it by 
limiting the number of wells or the surface space to be appropriated. 
The grantees had the right to divide the land into small tracts, leas- 
ing the same, with privil^e to the lessees to enter for the purpose of 
taking oil. 

Kitchen v. Smithy 101, 452 (1882). A lessee, under an oil lease, 
whereby he has exclusive possession of the land for the purpose of 
searching for, producing, storing, and transporting oil, is not a mer^ 
licensee ; he is a tenant within the act of April 3, 1804, sec. 6, which 
provides for the recovery from a landlord by a tenant for taxes paid 
by the latter under compulsion. 

Duke V. HaguBj 107, 57 (1884). A lease of described lots of land 
and ^^ of the exclusive right for the sole and only purpose of mining 
and excavating for petroleum, rock, or carbon oil," " to hold the said 
premises exclusively for the said purpose only," for twenty years, the 
lessors reserving for tillage and lumbering purposes the improved land 
and the use of all other land not necessary for producing oil, and fur- 
ther reserving certain royalties, vests in the lessee an estate for years, 
and not a mere license on the land demised ; and such lessee is entitled 
to a notice of partition by the owners of the fee, and the lessee will 
not be bound by such partition if it divides the land to his injarj^ 
unless he has had notice thereof or been made a party thereto. ** Not- 
witlistanding these stipulations the lessee is vested with an interest 
in the land. Cliicago & Allegheny Oil and Mining Co. v. U. Si 
Petroleum Co.^ bl Pa. St. 83. His interest is that of a tenant for 


j^ars for the purpose of miDing ; he has an absolute right of posses- 
sioa of all the surface necessary, and no one else can rightfully take 
oat oil during the term, save under him. The whole of the oU, or only 
a part, may be taken under the lease, but whatever shall be taken is 
of the substance of the realty. He is not an absolute owner of the 
whole of the oil, as he would be were all the oil in place conveyed to 
him in fee." 

Chamberlain v. Dow, 16 W. N. C. 532 (1884). A lease for the sole 
and only purpose of mining and excavating for petroleum and carbon 
oil, minerals and gas, to continue so long as oil shall be found in 
paying quantities, not exceeding a term of ninety-nine years, is a chat- 
tel real, and as such a partnership asset 

Brown v. Beeeher^ 120, 590 (1888). Lease of land for fifteen years, 
with the sole and exclusive right and privilege during said period of 
digging and boring for oil and other mineral, and gathering and col- 
lecting the same from the land. 

^^ The contract of February 3, 1882, between Cornen and Marsh is 
not a mere license, as in Funk v. Haldeman, 53 Pa. 229, for in that 
case the words of the grant amounted to neither a lease nor a sale of 
the land, nor of any of the minerals in the land. Funk's right was, 
therefore, declared to be a license to work the land for minerals, a 
license coupled with an interest which the licensor could not revoke. 
Nor does the contract of February 3, 1882, import a sale of all the 
oil, gas, and other minerals in the land absolutely ; the cases of Cald- 
well V. FvUon, 31 Pa. 476 ; Sanderson v. CUy of Scranton, 105 Pa. 
469, and others involving the same principle, do not, therefore, have 
any application. 

^^The contract referred to was a lease of the lands for a specified 
term, and for a particular purpose, at a fixed rent or royalty reserved 
out of the production. As to the legal force and effect of this writing 
there can, we think, be no doubt : it conveyed an interest id the land ; 
in this respect it is distinguished from a license." 

'^But although the writing of February 3, 1882, is a lease, it con- 
veyed to Marsh an interest in the land, — a chattel interest, however ; 
the lease was a chattel real, but none the less a chattel." 

JBamhart v. Lockwood^ 152, 82 (1892). A lease by which the first 
party grants, bargains, demises, leases, and lets to the second party 
for eighteen years, described land, and gives and grants ^^ the full, 
free, and exclusive possession of said piece of land during the term 
aforesaid, to bore, explore, and dig for oil," etc., in consideration of 
which the second party agrees to operate for oil and pay one-eighth of 
the oil obtained, is not a grant of property in the oil, but merely a 
grant of possession for the purpose of searching for and procuring oil.^ 

Wettengel v. Gormley^ 160, 559 (1894). G., who owned three con- 
tignous farms, demised tiie entire tract to T. for fifteen years, " for the 
piurpose and with the exclusive right of drilling and operating for 
petroleum, oil, or gas," for which T. was to pay a royalty of one-eighth 
of the product. G. then died, by his will devising one of the farms to 
each of his three children. T. had drilled all of his wells on one 

1 See also Venture Oil Co. v. Fretts, 152 Pa. 451 ; Plummer t. Hillside (7. ^ /. Co^ 
160 Pa. 483, pp. 173, 174, belOw. 


farm, and all of the oil produced was taken from these wells. It was 
held that each of the three children was entitled to such part of the 
royalties as the proportion which the acreage of his farm bore to the 
entire tract. 

For the reason that an oil well may drain oil from other land than that 
into which it is sunk, ^^ an oil lease partakes of the character of a 
lease for general tillage, rather than that of a lease for mining or quar- 
rying the solid minerals. In the case of a coal lease, for example, the 
exact location, with reference to lines on the surface, of every pound 
of coat taken may be easily determined. The stratum of coal is as 
fixed and permanent in its character as are the strata of superincum- 
bent rocks and earth. Its ownership as between several devisees, or 
heirs at law after partition made, is as easily determined as that of 
the surface. The removal of the coal from one purpart does not di- 
minish or disturb that which underlies another. The lines that divide 
the surface divide, with absolute fairness to all concernedi the sub-sur- 
face, and secure to the several owners, with certainty, the mineral that 
belongs to each. The rules applicable to coal leases, or leases of land 
containing any otiier solid mineral, are, therefore, not always capable 
of application to leases for the production of oil or gas, because of the 
difference between the solid and the fluid minerals, and because of 
the different conditions under which they are found and brought to 
the surface. 

'^ There is in this State no precedent that we are constrained to fol- 
low, and we cannot find that the question has been decided in any other 
of the oil-producing States." 

West Virginia ^^ ^* Petroleum Co,, 6, 200 (1873). This was 

*^ ' a lease of the land for one-fourth of the oil pro- 
duced. The ordinary law of landlord and tenant was applied. 

B. and C. Incorporeal Bights and Licenses relating to the 

Hxtraction of Oil and Q-as. 

Grants and leases of privileges and rights to bore for oil, and 
take the same from lands, like similar grants of mining privileges, 
confer incorporeal hereditaments or licenses, as the case may be. 

So also a grant or reservation of oil or gas in certain land, 
passes an incorporeal right only. This arises, as has been above 
explaified, from the nature of oil and gas, which is such that a 
corporeal interest in them in place cannot be created. 

The distinctions between incorporeal hereditaments and licenses 
are the same here as explained under those titles in Divisions III. 
and IV. of this chapter. But there is perhaps one important ele- 
ment wherein an incorporeal right to take oU or gas differs from 
an incorporeal right to take an ordinary solid mineral. The test 
of the latter is, that it is not exclusive of the right of the grantor. 
Incorporeal rights to the fugitive minerals, on the contrary, are, 
from the nature of these minerals, necessarily so. 



But while the right to take the minerals is exclusive, the right 
to possess the land is not so, aud this is the ground of distinction 
from that class of cases collected in the preceding section. A 
lease, therefore, of described land, with the right of boring for oil 
or gas, if it restrict the lessee's possession to these purposes, cre- 
ates an incorporeal right, and does not pass a corporeal interest 
in the land. 

The exclusion of others from boring for oil or gas may be ex- 
tended by the terms of the lease to other land than that upon 
which the right to bore is given.^ 

United States -^^won v. Spilman^ 155, 665 (1895). T. leased to 

B. '* for the sole and only purpose of boring, mining, 
and excavating for petroleum or carbon oil and gas, and piping of oil 
and gas, over " a tract of forty acres, " excepting reserved therefrom 
ten acres," fortwo years, or as long as oil or gas shall be found in pay- 
ing quantities. The consideration was one-eighth of the oil produced, 
and two hundred dollars a year for each gas well. It was farther pro- 
vided that the lessor might '^ fully use and enjoy the said premises for 
the purpose of tillage, except such parts as may be necessary for said 
mining purposes, and a right of way to and from the place or places of 
said mining or excavating." 

Shiras, J. : ^^ The subject of the grant was not the land, certainly 
not the surface. All of that, except the portions actually necessary 
for operating purposes and the easement of ingress and egress, was 
expressly reserved to Taylor. The real subject of the grant was the 
gas and oil contained in or obtainable through the land, or rather the 
right to take possession of the gas and oil by mining and boring for 
the same." The lease gave all the oil and gas under the entire forty 

The effect of the so-called exception was to forbid the drilling of 
wells upon the ten acres. The lease covered the entire tract for gas 
and oil purposes, but restricted the operations to thirty acres. West- 
moreland Co. V. DeWUt, 130 Pa. 235, followed. 
J- — Sh^herd v. McCcUmont Oil Co., 38 Hun, 37 (1885). 

ew or . jj^^jjg owner of land, entered into an agreement with W., 
by which he conveyed to him, his heirs, executors, administrators, and 
assigns, the exclusive right of entering upon any part of the said land, 
of erecting buildings, engines, fixtures thereon ; the right of way to 
and from the same, for the purpose of searching for minerals ; and to 
mine, bore, or excavate for oil, or any other valuable volatile or min- 
eral substance ; and to carry on such mining, etc., to any extent he 
might deem advisable, but not to hold possession of any part of, the 
land for any other purpose. The consideration was one-tenth the prod- 
uct, and W. covenanted to commence boring or excavating, etc., 
within one year, or as early as practicable thereafter, as he might deem 
expedient, or forfeit all right under and by virtue of the agreement. 
N. reserved the right to till the land. 

1 See below, p. 122« " PremiBet.*' 


This was a license to W. and his assigns. It did not convey to him 
a corporeal hereditament. '^We do not understand that there can 
In any property in rock or mineral oil, or that title thereto can be 
divested or acquired until it has been taken from the earth." 

FuTik V. HcUdeman^ 53, 229 (1866). A conyeyanoe 
ennsy ▼ a. ^^ ^^ ^^^ ^^^^ ^^^ uninterrupted use, privilege, and lib- 
erty to go on to any part " of certain land, ^' for the purpose of pros- 
pecting, digging, excavating, and boring and erecting machinery" 
*'*' necessary for prospecting, experimenting, or searching to find oil, 
etc., with the exclusive use of one acre about each well, and rights 
of way for <' himself, hands, and teams, tenants and undertenants, 
occupiers or possessors of said springs, mines, ores, or coal beds, in 
common with " the grantor, for which the consideration was $200, and 
in case of success, one-third of the product ; in case of failure, the 
premises to revert to the grantor, — passes not the minerals, etc., not an 
estate therein or in the land, but an incorporeal hereditament, a profit 
a prendre^ a license coupled with an interest to work the land for 

^^ But though we hold the papers in this instance to constitute a license 
and not a lease, it is a license coupled with an interest; not a mere per- 
mission conferred, revocable at the pleasure of the licensor, but a 
grant of an incorporeal hereditament, which is an estate in the grantee, 
and may be assigned to a third party. Even a parol license, without 
consideration, on the faith of which the grantee expends money, can- 
not be revoked at the pleasure of the gi*antor, but will be enforced in 
equity. LeFevre v. LeFevre, 4 S. & R. 241 ; Rerick v. -ffeni, 14 id. 271 ; 
and see Wood v. Leadbitter^ 13 M. & W. 840, and cases in note. 

^' Though this proposition is doubted, perhaps denied, in some of the 
States around us, it is not to be doubted that where large expenditures 
have been made under a written license ^ rights are acquired which will 
be upheld both at law and in equity." 

This incorporeal interest, while entire and indivisible at law, may 
be made divisible by the terras of the grant. 

By the terms of the original grant the grantee's interest was to be 
enjoyed in common with the grantor, but when the latter, by a subse- 
quent deed confirming the grantee's interest, arranges with him for a 
full development of the oil in the land, reserves to himself parts of the 
land in which to mine for oil in his own way, licenses the grantee to 
enter upon the unreserved parts to experiment for oil, to subdivide 
the premises into suitable lots for this purpose, and to assign and 
transfer them in whole or in severalty according to his pleasure, and 
obliges him to erect machinery and to diligently and energetically use 
all reasonable means to obtain oil, and on the faith of an exclusive 
interest, which the conduct of the grantors Justify his holding, the 
grantee makes large expenditures, his interest within the unreserved 
portion of the land is exclusive, and the grantors can exercise no min- 
ing rights within those portions. 

Dark v. Johnston^ 55, 164 (1867). The owner of a farm and an 
island granted to another the right to search for oil on the island, and 
agireed, in case he was success/til^ to sell him the island for a certain 
amount. He further granted him the exclusive right to sink welk 


oa the farm, at a certain rent for each well, with a provision for H^ 
removal of machinery in case of failure. 

This was a license personal in the licensee, which could not be revoked 
after the expenditure of money by him, but which he could not assign 

Oil, like water, is not the subject of property, except in actual occ^- 
pi^pcy, and a grant of it passes nothing for which ejectment will lie. 

Bynd v. Ryiid Farm Oil Co., 68, 897 (1869). R granted to W. t)^e 
exclusive right to bore for oil on his farm, R. to have one-fourth of ^jie 
product, and in case, after reasonable experiment, W. should be satis- 
fied that oil could not be found in profitable quantities, the lease to 
determine and possession to revert to R. ; should oil be found in profit^ 
lible quantities, the lease to be perpetual ; W. not to interfere with R.'s 

On part of the land boring had been profitable ; on the rest, operi^- 
tions had been abandoned. R., alleging that they had not been su^ 
cessf ul, brought ejectment for that part. 

Heldy ejectment would not lie to test R's right to bore for oil ; bu^ if 
would if W. had occupied the land for other purposes or to a grea(e|^ 
extent than allowed by the contract, the license having been acte^ 
upon as irrevocable. 

Union Petroleum Co, v. JBliven Petroleum Co,, 72, 173 (1872). A 
lease of '* the exclusive right and privilege of boring for oil, etc., upon 
the farm upon which the first party now resides/' with rights of access 
and building ; said boring to be done so as to do the least possible in- 
jury to the farm, lessee to pay $150 and one-tbiixl the product; holes 
to be such as to satisfy the parties, and lease to continue until annulled 
by mutual agreement. This was an incorporeal hereditament. T\xe 
remedy for disturbance of the right was case. Ejectment would not 

In an action for damages for disturbance of the right, defendants 
put in evidence a verdict and judgment in ejectment for the land. 
Hdd, not conclusive, and as it was not for the same subject-matter, 
irrevelant, unless the incorporeal right was derived from the party 
against whom the recovery was had. 

Thompson's Ap., 101, 225 (1882). A. conveyed a tract of land to 
B., C, D., E., and F., for the purpose of boring for oil^ etc, reserving 
to himself one-fourth of the oil produced. The grantees were to hold 
iu undivided one-eighth parts, B., C, andD. having each two-eighths, 
£. and F. each one-eighth. B., C, and D. conveyed each one-half of his 
interest to G. and ten others, with a provision that they should be sub- 
ject as to time, place, and manner of operation to the management 
and control of the majority in interest of the owners of the tract. G. 
afterwards conveyed to H. A majority in interest leased the tract to 
B. and C, their heirs and assigns forever, for the purpose of boring for 
oil, the grantees to retain one-half of the product. H. did not assign 
or assent to this lease. Held, H. held subject to the above provisions 
in the deed to G. and others, and was bound by the lease to B. and C, 
and consequently not entitled to a full share of three-fourths of the oil 

The interest conveyed by A. was not an estate in the land or minerals. 
It was an incorporeal right, a license. The grantees were engaged 



in a busiDess venture, and whether as partnera or tenants in common 
makes no difference. 

Westmoreland N. O. Co, v. De Witty 180, 235 (1889). " From the 
nature of g&s and gas operations, already discussed (see p. 32), the 
grant of well rights is necessarily exclusive. It was so held even as 
to oil wells, in Funk v. Haldemariy 53 Pa. 229, 247, 248, although in 
that case the plaintiff had a mere license to enter, etc., and not, as 
complainants here, a lease of the land; and it is exclusive in the 
present case over the whole tract" 

A tract of land was leased for the sole and only purpose of drilling 
and operating gas wells, with a provision that no wells should be drilled 
within three hundred yards of a certain building, and a reservation of 
the surface for tillage. It was decided that the land within three hun- 
dred yards of the house was a part of the leased premises, and that the 
lessor miglit not grant to another the right to sink a well thereon. 

Duffleld V. Hue, 129, 94 (1889). Brown leased to Pratt all that cer- 
tain lot or piece of ground situate, etc., according to a division of said 
tract into numbered sites, each site situated on lot numbered respec- 
tively on a map ; and also sites for three wells south of a certain rail- 
road to be designated and mutually agreed upon by the parties, for the 
term of fifteen years, ^^ with the sole and exclusive right and privilege 
during said period of digging and boring for oil and other minerals 
on said lot.'* The rights of the lessee for oil-mining purposes were re- 
stricted to the specified sites. He had no right of possession for any par- 
pose at any other place within the bounds of the territory described. 
He could not maintain ejectment for any of the land outside of the 
designated sites. If the lessors, or others acting for them, by boring 
other wells lessened his production or otherwise disturbed or interfered 
with his rights, he may have had his remedy, but not in this form. The 
lease was ^^ a lease for production of oil, not a sale of the oil or of the 

Duffleld V. Huey 136, 602 (1890). The lessee in the above lease, 
however, has the protection of the entire premises, and equity has ]a- 
risdiction to restrain the lessor or others acting under him from drilling 
wells thereon outside of the designated site, and thereby lessening the 
^)roiUiction of wells drilled by the lessee, such injury being destructive 
of his riorhts and incapable of adequate remedy at law. 

Duffleld v. Rosenzioeigy 144, 520 (1891); s. c. 150, 543 (1892). 
The lease in this case is described as *' a lease of the exclusive right 
and privilege of digging and boring," etc., is said to be exactly like 
the lease of Unio^i Petroleum Co, v. Bliven Petroleum Co.y 72 Pa. 
173, and an action for trespass (such as action under the act of May 
25, 1887, being indistinguishable from an action on the case) was held 
to lie for damages against one boring for oil on the premises but out- 
side of the designated sites. The lessee ** was entitled to all the oil 
he could produce at those sites ; and, although limited in his actual 
operations, he had the protection of tlie entire premises, and the privi- 
lege of drilling other wells on the saipe terms, if the lessors should 
determine to have other wells drilled. But except as stated he was 
not in t!ie actual possession of the land, nor, perhaps, of the oil 
beyond his actual production." 


Greensburg Fud Co. v. Irwin Hat. Oas Co., 162, 78 (1894). " A 
right to tafce gam hmm, tliA laud or water from the spring of another 
for private ase or oonsamption, is not laad held in fee, and the appli- 
ances and privileges necessary to the enjoyment q£ the right are not.'* 

VI. Reservations and Exceptions. 

The rule is laid down broadly that a reservation of ininerals or 
mining rights is to be construed as a grant, and this may be taken 
to apply equally to an exception. Where the interest retained by 
the grantor is an incorporeal right, it is a reservation, being 
something which before had no existence. But where a corporeal 
interest in the minerals is retained by the grantor, it is an excep- 
tion thereof. This is the broad distinction, which, however, is 
often not regarded. 

MassachasettB Famum v. PlaU, 8 Pick. 389 (1829). This was 

' an action of trespass quare dausum fregit for carry- 
ing away marble from a quarry. The owner of land having leased 
a marble quarry thereon for ten years, conveyed the land, * ^ reserv- 
ing the use of the quarry until the expiration of the lease." The 
lease was cancelled within ten years with the consent of the parties. 
Held^ that the reservation was not thereby extinguished, but that it 
would continue in force till the end of the ten years. 

Parker^ C. J. : ^^The words 'until the expiration of the lease' 
mean, until it shall expire according to the terms of it, and not the 
termination of it by a new agreement between the parties to it. And 
the reservation enures to the use of the lessor as well as the lessee ; 
for it saves the quarry from the operation of the deed, for the time, 
as much as it would if the reservation had beeb for the unexpired 
time, without any mention of the lease." 

Munn V. Stone, 4 Cush. 146 (1849). This was an action of tres- 
pass for taking and carrying away a portion of a ledge of granite in 
land alleged to belong to the plaintiff. The plaintiff claimed title by 
a deed from Severance. Severance derived his title from Lyman. In 
the deed from Lyman to Severance was the following reservation: 
*' Reserving to myself the privilege of entering said tract, and taking 
and carrying away stone from the northern part of said tract as far 
south from the northern end as the woods now stand in said tract" 
The subject of this reservation was the granite ledge in controversy. 
The defendants claimed by a deed from Lyman by which he conveyed 
all the rights to the stone in the granite ledge which he reserved to 

" We cannot distinguish between the reservation of a right or privi- 
lege of entering on a particular, designated part of a tract conveyed 
and carrying away stone, and a reservation of the use of a marble 
quarry, out of the land conveyed, for a limited time. Whether it is 
an exclusive use, or a use in common, may be a question ; but it is the 



same in both cases. We think, therefore, that this case is subetan- 
tiallj governed by that of Famum v. Platt^ 8 Pick. 339. The Qi4y 
difference is, that in the case cited the use reserved was for a teraa 
of years ; in this case it is a reservation to the grantor generally, 
which, being without words of limitation, is a right for his life. We 
are of opinion, therefore, that the reservation recited did not consti- 
tute a mere privilege to Lyman to take stone personally, but was a 
right and interest in the use of the ledge, which was assignable ; and 
the defendants, having obtained a right of him, were not chargeable 
with the trespass complained of." 

Stockbridge Iron Co. v. Hudson Iron Co,, 107, 290 (1871). In a 
deed poll of land containing an ore bed, a clause ^^ reserving to " the 
grantor ^^ the right of mining on the granted premises" a certain 
quantity of ore annually, at a certain duty per ton, licenses him to 
enter and mine, but saves to him no title in the land, or in the ore 
before it is mined and separated from the land ; does not restrict the 
grantees from raining at the same time, even to the exhaustion of the 
ore ; and may be reformed in equity for variance through mutual mis- 
take from the previous* oral conti*act of the parties, as a reservation 
and not an exception from the grant, and therefore not within the 
Statute of Frauds. 
MisBoari WardeU v. Watson, 93, 107 (1887). Minerals in place 

**^ ' are land, and may be conveyed as such, and when con- 
veyed they constitute an inheritance separate and distinct from 
the silrface. A reservation of minerals and mining rights is con- 
strued as a grant. In either case the owner of the mineral estate 
has the right to dig and take the minerals. And for this purpose be 
has the right to enter and take possession even against tiie owner of 
the soil, and to hold such possession, and use the surface so far as 
may be necessary to carry on the mining, and this without express 

Snoddy v. Bolen, 122, 479 (1894). "An exception in a deed is 
always part of a thing in being and a paii; of the thing granted ; while 
a reservation is of a thing not in being, and is newly created, as rents 
and the like. An exception withdraws from the operation of the con- 
veyance some part of the thing granted, which but for the exception 
would have passed to the grantee under the general description ; while 
the reservation is the creation, in behalf of the grantor, of some new 
right issuing out of the thing granted, — that is to say, something 
which did not exist as an independent right. . . . There can be no 
doubt that the qualifying words used in the deed from 11. and T. to the 
county amount to an exception, the thing excepted from the grant 
being the ' valuable minerals ' in the streets and alleys. The mineitils 
thus excepted remained in the grantor in the same right as before the 
grant. . . . Coal, mineral, and stone under the surface of the earth 
are subjects of grant and exception ; and when excepted in a deed be- 
come a separate and distinct inheritance." 

New Tork Norton v. Snyder^ 2 Ilun, 82 (1874). S., who owned 

certain land, leased to T. for the term of twenty-five 
years the exclusive right and privilege in all the cement stone on it, 
with power to quarry and remove the same, and with a covenant on 


the part of S. to renew the lease for twelve years from its expiration* 
T. assigned to the N. C. Co. Subsequently , and before the twenty- 
five years expired, 8. sold to A. part of the land, ^' excepting and 
reserving for the N. C. Co. the privilege of quarrying and conveying 
off the cement stone which they hold by virtue of a certain lease for 
the same.'* At the expiration of the lease S. renewed it. Held^ that 
he had no right to do so in so far as it related to the stone upon the 
land conveyed to A. And the latter was entitled to an injunction 
restraining the lessees from mining on his land. 

Marvin Y. Brewster Iran Mining Co., 55, 538 (1874). A convey- 
ance of land ^^ reserving always all mineral ores thereon now known, 
or that may hereafter be known, with the privil^e of going to and from 
all beds of ore that may be hereafter worked on the most convenient 
ronte to and from/' passes the surface land in its condition at the time 
the grant was made, or in the state, for the purpose of putting it into 
Which the grant was made. 

** A reservation of minerals and mining rights is construed as is an 
actual grant thereof." ^^ A reservation of minerals and mining rights 
from a grant of the estate, followed by a grant to another of all that 
which was -first reserved, vests in the second grantee an estate as broad 
as if the entire estate had first been granted to him with a reservation 
of the surface." 

Ohio ^^o«» V. Furnace Co., 29, 568 (1876). The words «'reserv- 
' ing all the minerals underlying the soil," in the granting clause 
of a deed for conveyance of land, constitute an exception of the min- 
erals from the operation of the grant ; the fee thereto remains in the 
Pe iTania ^«^^ v. McDoweU, 3 W. & S. 358 (1842). B. seised 

ennsy t . .^ ^^^ ^^ ^ tract of land, subject to an outstanding title 
to one half of all iron ore found in the premises, conveyed the same 
to H. in fee, ^^ excepting and reserving to the said B., his heirs 
and assigns, the one half of all iron ore found on the land." Held, to 
be a reservation to the grantor himself of that half of the ore which 
was vested in him, and not a mere notice or reservation of the other 
half which was outstanding. 

Shoenberger Y. Lyon, 7 W. & S. 184 (1844). A reservation in a 
deed of conveyance which is as large as the grant itself is void, and 
the grant is valid. 

S. and L., being tenants in eommon of H. Furnace and the lands 
appartenant thereto, and at the same time owners of a right to dig, 
take, and carry away ore to be used at H. Furnace from a tract of 
land which belonged to a third person, L. conveyed to S. his right, 
title, and interest in the furnace lands and ore bank, reserving the full 
undivided one-half part of all the iron ore in any of the land now 
belonging to the H. Furnace, within not less than two miles of 
H. Farnace. HM, not a reservation x>f right to take ore on land 
which belonged to the third person, though not within two miles of 
«aid furnace. 

Whitaker tr. Brawn, 46, 197 (1863). A provision in a deed in fee 
o< hmd, ^' saving and reserving, nevertheless, for his (the grantor's) own 
the coal contained in the said piece or parcel of land, together with 


free ingress and egress by wagon voad to haul the ooal therefrom as 
wanted," is not a reservation bat an exception. The property in the 
coal remains in the grantor, and descends to his heirs. 

AlderCs Ap., 93, 182 (1880). On May 9, 1786, Peter Grubb con- 
veyed to Robert Coleman premises which he had derived from his 
father, Curtis Grubb, ^' saving and excepting unto the said Peter 
Grubb, his heirs and assigns forever, the right, liberty, and privilege 
at all times hereafter of entering upon the premises, etc., and of dig- 
ging, raising, and hauling away a sufficient quantity of iron for t^e 
supply of any one furnace at the election of the said Peter Grubb, his 
heirs or assigns, at all times hereafter." Peter Grubb exercised those 
rights by supplying the Berkshire Furnace. 

On May 7, 1788, he conveyed to George Ege, his heirs and assigns, 
*^all the right, liberty, and privilege of him, the said Peter Grubb,^ 
etc., of entering at all times hereafter upon the premises aforesaid, 
etc., and of digging, raising, and hauling away a sufficient quantity of 
iron ore for the supply of any one furnace at the election of the said 
George Ege, his heirs or assigns, at all times hereafter. £ge supplied 
the Berkshire Furnace until 1793, from which time he supplied the 
Reading Furnace until 1858. Improvements in the manufacture of 
iron, especially the use of steam instead of water power, the introduc- 
tion of anthracite coal as a fuel, and the hot blast, very greatly in- 
creased the capacity of this furnace. Held: 1. The owners of the 
reserved right were not restricted to the quantity of ore used by each 
at the time he elected the Reading Furnace, but to a sufficient quan- 
tity to supply any one furnace from time to time selected by them, 
although of a larger capacity and using modern improvements in 
manufacture not known at the time of the election of the Reading 

2. The measure of the quantity of ore to which they were entitled 
was so much as a given furnace would use in the course of a year, 
taking into consideration wear and tear and the necessity of going out 
of blast for repairs at certain intervals. 

3. The ore when taken from the mines was their absolute property, 
which they might use or sell, provided the entire quantity taken out did 
not exceed the quantity measured by the capacity of one furnace. 

4. If they omitted to take all the ore to which they were entitled in 
any one year, they could not take the quantity thus omitted in any suc- 
ceeding year. 

5. They were liable for ore taken or stolen in excess of that needed 
for one furnace, and were chargeable with interest thereon. 

Foster v. Rurik^ 109, 291 (1885). A. conveyed a farm to B. by a 
deed containing the following reservation : ^* Excepting and reserving 
thereout unto A. all and all manner of metals and minerals, substances, 
coals, ores, fossils, and also all manner of compositions, combinations, 
and compounds of any or all the foregoing substances, and also all 
valuable earths, clays, stones, paints and substances for the manufac- 
ture of paints upon or under the said tract of land." B. then leased 
the farm to C. for the manufacture of bricks, with the right to use the 
day thereon for that purpose, reserving a certain royalty on bricks 
made and sold. The next day A. also made a lease to C. for ten yearn 


from June, I8669 with the privil^e of renewal, granting the same priy- 
il^e and under like proyisions. Both leases were assigned to D., who 
took possession and manafactored bricks thereunder. D. renewed the 
lease with B., but not the one with A., and continued his possession 
and business after the expiration of the latter lease. D. refused to 
pay royalties to A. after 1873, claiming that A. had no title to the 
brick clay after his deed to B., and that his lease was therefore void. 
In a suit by A. against D. for royalties, — Held: 1. That the reserva- 
tion in A.'8 deed to B. included the clay suitable for making bricks, 
and was not restricted to the kind of day from which paint could be 

2. That said reservation was not void, as being as broad as the 
grant, but the latter passed the ordinary glebe timber and waters. 
White the reservation, technically construed, might perhaps include 
everything which was the G^ubject of the grant ; yet the contracts of 
ordinary people are not to be so construed, but must be interpreted so 
as to carry out the manifest intention of the parties as determined by 
viewing the subject-matter thereof, as the mass of mankind would 
view it. 

8. That by virtue of D.'s holding over after the expiration of A.'s 
lease, the same continued in force against him. 

LiUibridge v. Laakawanna Coal Co., 143, 293 (1891). «' There is 
no substantial difference between a title by exception out of a grant, 
and a title by direct grant of the same subject. In a case of an 
exception, the grantor retains the whole title which he already holds; 
and in the case of a direct grant, the grantee holds the whole title 
granted, and the ownership is as absolute in the one case as in the 
other. We have held that a grant of all the coal underneath the 
tract of land is an absolute conveyance in fee simple of all the coal, 
and no greater title than that could be acquired by an exception to the 
same effect in a grant of the surface. The books make no distinc- 





I. Effect npon tjie Lease of the Non- 
existence, Exhaustion, or the Un- 
merchantability of Minerals. 

n. Duties and Obligations of the 

A. Lessee's Duty to mine. 

B. Covenants to work Mines. 
(a.) Coyenants simply to mine. 
(6.) Covenants to mine a Certain 

(c.) Covenants to sink Wells and 
conduct Oil Operations. 

{d.) Covenants as to Manner of 
working the Mine and as to 
the Condition of the Mine. 

C. Duty and Covenants to pay Taxes. 

D. Rent and Royalty. 
IIL The Premises. 

A. Rights growing out of the Do- 

scription or Nature of thes6 
or incident thereto. 

B. Fixtures and Appurtenances. 
rV. The Subject of the Lease and the 

Right of the Lessee to Minerals 
not enumerated in his Lease. 

i. Eppect upon the Lease op the Non-existence, Exhaustion, 
OB the Unmerchantabiuty op Minerals. 

There is no implied contract in a lease of land that it is fit for 
the purpose for which it is let, neither is there any implied 
warranty in a lease of a mine that it contains the mineral which 
is supposed to be in it, either as to amount or as to quality. The 
non-existence or exhaustion of mineral, therefore, is, as a rule, 
no defence to an action for the rent, since the lessor is not to 
be considered as having guaranteed its existence, and the lessee 
gets all that he has contracted for. Likewise, when the ore 
proves unmerchantable, this fact is not material in an action 
for the rent, and will not be considered as a defence to the 
same, unless the lessor expressly guarantees that the mineral 
does exist or that it will be merchantable ; these are risks which 
are, and should be, properly speaking, assumed by the lessee. 
This rule, of course, has its application only in the absence of 
special contracts to the contrary, of mistake, fraud, or misrepre- 
sentation. Where there is a stipulation that the mineral shall 
f)e merchantable, the burden of showing its quality is on the 


There is, however, ah exceptioa to the general rule, a class of 
cases in which the non-existence or exhaustion of mineral is 
a defence to an action foi* rent 

Circuit Judge Dallas in a recent case {Ridgely v. Conewago Iron 
Co., 53 Fed.. Rep. 988) lays down the rule that where there is a 
covenant in a lease to pay rent irrespective of product, the lessee 
mast pay though he gets no mineral ; but if he covenants to take 
out a stipulated quantity of mineral, or upon failure to do so, to 
pay royalty upon such quantity, his obligation is to pay for that 
quantity whether mined or not, and not whether it exists or not, 
and he is not bound to make payment after the exhaustion of the 

This statement, although it gains some support from Boyer v. 
JFWmer, is much broader than the Pennsylvania cases justify. In 
maiiy cases where the lease contains a covenant to mine a certain 
quantity or pay royalty thereon, exhaustion has been held to be 
no defence to an action for rent. The test is to ascertain from 
the terms of the particular lease and the circumstances sur- 
rounding its execution whether the lessee took the 'risk of the 
exhaustion of the minerals. It iS believed that no fixed rule of 
construction can be laid down for the determination of this ques- 
tion. In Timlin v. Brown the rule was laid down that when 
there is an absolute grant of all the minerals, and the existence 
of mineral is an ascertained fact, the lessee takes the risk of its 
quantity. Where th6 existence of mineral is left in doubt, the 
risk is not assumed by him. When, therefore, by the terms of 
the lease, or the circumstances, it is apparent that the existence 
of mineral is to be determined by the operations under the lease, 
then the non-existence or subsequent exhaustion of the mineral 
terminates the lessee's liability thereunder. On the other hand, 
if the existence of mineral in the land has already been deter- 
mined, the lessee is bound to pay royalty in strict accordance 
with his contract, although the mineral be exhausted. The 
amount of mineral in a tract of land can be known to no one 
before it is mined, and it is the lessee's own folly if he does not 
by covenant protect himself from the result of possible exhaus- 
tion. Wliere, hoWever, the existence of the mineral is not act- 
tially known, either the contract is made for the purpose of 
defemfn!ng Whether or not it does exist, or it is made upon the 
assumption that it does exist ; and if it does not, there is a case oK 


mutual mistake, against which equity will relieve. The difficulty 
of applying such an artificial test as is laid down in Timlin y. 
Brown is apparent in Boyer y. Fvlmer* In this case, the court, 
while in terms applying the rule in Timlin y. Brawny resorted to 
all the circumstances to ascertain the intention of the parties, with 
little regard for the narrow distinction contained in that rule.^ 

But while non-existence or exhaustion may thus relieve a 
lessee from the covenants of his lease, unmerchantability or on* 
profitableness, it is submitted, in the absence of special contract, 
mistake, or fraud, never does. 

Where a lease provides for a test or other means of determin- 
ing the existence of mineral, that means must be pursued, other- 
wise the non-existence of mineral may not be set up. Oil leases 
generally contain a provision that a well shall be drilled within a 
certain time, and until this is done the lessee may not set up the 
unproductiveness of the land established in any other way, how- 
ever perfect. 

In Pennsylvania it is provided by statute (act 26 May, 1893, 
P. L. 144) that where iron mines have been exhausted, and per- 
sons having the right to mine have abandoned that right for 
twenty-one years, it may be extinguished by judicial decree. 
Aside from the statute, it would seem that where the absolute 
owner of minerals in place had mined them to exhaustion, his 
estate would be at an end, and the owner of the soil would 
assume entire ownership to the centre of the earth.^ 

TT -4. ;i ai. 4. Lehigh Z. & L Go. v. Bamford, 150, 665 (1893), 

umtea Btatea. ^ffij^jng Bamford v. Lehigh Z. & L Co., 38 Fed. 677 

(1887), C. C. S. D. N. Y. By the terms of a lease, the lessee acquired 
the exclusive right for ten years to mine all metals and minerals to be 
found on the premises at a certain royalty. It was provided that if 
the royalties in any year should fall below $1,000, the lessee should 
pay an additional sum to make the royalty amount to $1,000 : ^^ Pro- 
vided always, that if sufficient ores cannot be found to yield said mini- 
mum payment, and said party of the second part shall in consequence 
thereof fail to pay said minimum sum of $1,000 yearly, then said party 
of the second part shall, if required by said parties of the first part, 
relinquish this lease and the privileges hereby granted, and the same 
shall cease thereupon." 
It was not a defence to an action for the minimum royalty that there 

^ See article by Lacios & Landreth, Esq., in Am. Law Reg. and Rev. for Jan., 1897. 
^ As to whether, upon the exhaustion of minerals, the mineral estate is terminatod, 
4see Chap. IV., Div. II., B. 


was not safficieDt oi*e to produce that amount. The above proviso did 
not have the effect of terminating the lessee's liability. 

It was said by the court below : ^ ^ There is no implied contract in a 
lease of land that it is fit for the purposes for which it is let, neither is 
there any implied warranty in a lease of a mine that it contains the 
mineral which is supposed to be in it. In the absence of a special 
contract, or of misrepresentation or fraud, or of the injurious and 
wrongful acts or omissions of the landlord, a tenant of land or un* 
finished buildings cannot properly refuse to pay rent on the ground 
that the land or the buildings became untenantable." Nor is the de- 
fence good if rested upon tiie theory of a failure, not of beneficial 
occupation of the premises, but of consideration. The consideration 
^^ was the use of a mining property and works of large cost and doubt- 
ful value, but which might become of profit/' and the lessee received 
that which he had contracted for. 

Bidgely v. Conewago Iran Co., 58 Fed. 988 (1898), C. C- E. D. Pa. 
A mining lease requiring the lessee to mine at least four thousand tons 
annually, and to pay therefor a fixed sum per ton, or failing to take 
out such quantity to pay therefor, imposes no obligation to pay for 
such quantity after the ore in tiie demised premises has become 

Dallas, C. J. : *' Mining leases commonly include, in addition to the 
usual undertaking to pay for what may be actually mined, a covenant 
that some fixed or ascertainable sum, at least, shall be annually paid. 
These covenants are not all the same or to the same effect. They may 
be divided into two classes : first, those which require the payment of 
rent irrespective of product; second, those which require that upon 
failure to take out a stipulated quantity, royalty with respect thereto 
shall nevertheless be paid. When the covenant is of the first class the 
tenant is liable for the rent, even if nothing could be got by mining." 

^* Where the covenant is of the second class his obligation is to pay 
for the stipulated quantity whether mined or not, not whether it exists 
or not. He contracts for promptitude and thoroughness in mining, 
not for the productiveness of the mine." 

jjj^ Walker v. Tucker, 70, 627 (1873). Lessee of land for 

^ * mining purposes contracted ^' to work said coal mine during 
the continuance of this lease and agreement in a good and workman- 
like manner." In an action for breach of contract it was alleged that 
lessees had suspended their operations and abandoned the working of 
the mines. ^^The plea alleges that ^ on the said 15th day of September, 
1871, the mines became wholly exhausted and inc&pable of yielding, 
when worked in a good and workmanlike manner, and with reasonable 
skill, care, diligence, and energy, sufficient coal to pay for working 
said mines,'ietc. If the plea had stopped short, after alleging that 
the mines became and were wholly exhausted, it would have been 
good, but the subsequent qualifications show that these words do not 
mean exhausted of coal, but only exhausted of such coal as was capable 
of yielding, *• when worked in a good and workmanlike manner, and with 
reasonable skill, care, diligence, and energy, sufficient coal to pay for 
working said mines.' This might be, and yet the most valuable por- 
tion of the mine remain untouched. It might be the result of the 


peculiar state of the market, and in nowise attributable to the difficul- 
ties to be encountered in mining ; but from whatsoever cause the result^ 
it is a sufficient answer that the courts must enforce contracts as the 
parties make them. . . • There is nothing in this instrument which 
authorizes a suspension or abandonment of mining because it had 
become unprofitable,** 

^^ Where from tlie nature of the covenant it is apparent the parties 
contracted on the basis of the continued existence of a given person 
or thing, a condition is implied thaJt^ if the performance became impos* 
sible from the perishing of the person or thing^ that shall exctise such per- 
fomnance. If, therefore, the coal mine was exhausted, the appellants 
were excused from further working it. Whether a coal mine is ex- 
hausted or not is a question of fact to be determined by the jury, from 
the evidence ; and in determining this question, since the pai'ties are 
always supposed, in entering into a contract, to have reference to the 
known usage and custom which enters into and governs the business 
or subject to which it relates, it would be proper to hear evidence of 
any known usage or custom relating to this question and showing 
when a mine is deemed exhausted." 

Sylvester v. Holly 47 Ap. 304 (1893). In an action on contract, 
the second count of the declaration averred the leasing of certain lands 
for the purpose of mining coal thereunder, and that prior thereto the 
coal had been removed therefrom, whereby said land was a loss to the 
plaintilf for the purpose for which it was leased. 

This did not aver any covenant that the coal had not been mined 
from said land, and hence stated no covenant the breach of which was 
alleged. A demurrer thereto was consequently sustained. 
_ ^ McDowell V. HendriXy 67, 513 (1879). Where a lease of 

land for the sole purpose of mining coal provides that lessee 
shall pay a certain sum for each ton mined, and that after the first 
year the amount of rent shall not be less than a specified sum, it is no 
defence to an action for the rent, so long as lessee continues in pbsses- 
sion, that sufficient coal could not be mined to make the royalty 
amount to the minimum rent, although it might be ground for aban- 

Iowa ^^'^^ ^' ^^^^^ ^^^ (^"t ^^» ^1^ (1886). Defendant, as 
lessee of coal land, agreed to commence work as soon as prac* 
ticable, and to mine coal from plaintiffs land by June 1, 1885, pro- 
vided there was found a workable vein of good merchantable coal, 
and in that case to pay an agreed royalty. 

No coal was in fact found, defendant never making the effort to find 
any ; and whether there was a workable vein of coal upon the Und, 
though alleged in the petition, was, in the nature of the case, a matter 
of conjecture. Held^ that thert could be no recovery of royalty, as 
defendant had mined no coal ; kui for his failure to prospect for coal, 
the existence of which was not known, only nominal damages could 
he recovered. 

THtder v. Stibinson, 70, 500 (1886). Where a lease of soppdetM 
coal lands for mining purposes waiEf executed, delivered, and receivM 
iinider the mntu'ftl belief tlmt there wiM coal underlying Ae llind, atid 
that Vhe same could be mined, and ft is cHe^ from &e tesftimon^ Uk 


an action to recover rent that there was no coal there, equity will 
grant relief because of the failure of consideration rising from the 
i^iutual mistake, and will defeat a recovery by the lessor. 

Carr v. WhUebreast Fuel Oo., 88, 136 (1893). P. leased to D., for 
coal mining purposes, a large tract of land in L. county, for a term, 
until the latter, with the diligence aud in the mauner required by the 
lease, '^ shall be able to mine and remove all the available and mer- 
chantable and salable coal to be found tlierein." D. was to pay P. a 
royalty on all coal taken out, and was given the right to take coal 
f ropi adjoining lands, through the shafts sunk on the leased premises ; 
but it was agi-eed that D. should conduct the principal business of it» 
mining in L. county, on and from said premises, and that it would 
mine therefrom a majority in bushels and weight of all the coal that 
it sbould mine in said county from year to year. Both parties be- 
lieved, when the lease was made, that the land abounded in coal, 
but they were both mistaken as to its quantity. D. used due dili- 
gence in discovering and mining the available coal, and paid P. in full 
the royalty on the coal mined. The coal so mined wisis for several 
years a majority of all the coal mined by D. in L. county ; but in later 
years, on account of the failure of the available coal, D. could not 
make the coal mined from the land such a majority except by reduc- 
ing the output of other lands. Held, he was not required to do so, on 
account of the mutual mistake of the parties as to the amount of 
available coal in the land. P. could not recover ix>yalty on the differ- 
ence between the amount mined and that taken from other lands in 
the county. D. was not obliged to surrender the lease in order to 
avoid liability for this difference, as he could not do this until the coal 
was exhaust^. 

Fort Scott Coal & Mining Co. v. Sweeney, 15, 244 (1875). 
'' S. leased to the company for the term of two years " the 
sole and exclusive right and privilege of boring, digging, and other- 
wise prospecting for coal, petroleum, lead, or other valuable sub- 
' stances" on a certain piece of land, ^^ and of taking out and working 
the same " for the consideration of one dollar and of one cent per 
bushel of all coal taken out, with certain exceptions. The company 
also agreed to pay S. "royalty to the amount of $500, on or before 
the firet day of May, 1873, said money to be considered as royalty 
in advance if said company have not at the time taken out fifty thou- 
sand bushels of coal." In an action for this 8500 it is not a good de- 
fence that the coal found on and taken from the land was not " good, 
marketable, and merchantable." 
^^ J. Clark V. Babcock, 28, 164 (1871). Under a lease of a 

c gan. gj^^.jjjiii j^nd salt-works, the lessor is not bound to furnish 
a well capable of supplying sufficient water in quality and quantity for 
the probable use of the works. The lessee leases an existing prop- 
erty, and there is no foundation for a claim for losses from failure 
unless it was injured by the lessor. 

Oribben v. AtMnsoii, 64, 651 (1887). The owner of land leased it 
for twenty years *'for the purpose of exploring for, mining, taking 
out, and removing therefrom the merchantable shipping iron ore which 
is or which hereafter may be found on, in, or under said land," with a 


provision that the lessee might terminate the lease by giving three 
months' notice. It was also provided that lessee should pay a royal^f 
of fifty cents per ton on all ore removed, and that a certain minimum 
amount should be removed each year or royalty be paid thereon, and 
that lessee should by the first of each year pay all taxes levied on the 
land ; and farther that the right of possession of said lands not occu- 
pied by the lessee for mining purposes should remain in the lessor, 
who should have the same right to use and occupy them as if the lease 
had not been* made. The lessee having made diligent search and ex- 
ploration for nine months, and having found no iron, and it having 
been shown by experts that no iron existed in or under the land, the 
lessee was not liable for the royalty under the lease, but was liable for 
taxes levied while he was in possession'. 

^ ClarTc v. Midland Blast Furnace (7o., 21 Ap. 58 (1886). 

^'^ * An agreement was entered into by which A. '^leased, con* 
veyed, and transferred " to B. for the term of five years a piece of 
land ^' upon which there is an iron bank," with the exclusive right to 
mine for and remove the iron ore. B. contracted to pay a royalty for 
each ton mined, and to mine a certain amount per annum or pay roy- 
alty on that amount as a minimum. It was also provided that if at 
any time B. ''fails to find sufficient merchantable iron ore on said 
land to justify the working of the same, or if in his judgment the same 
land cannot be profitably mined for iron ore," he might terminate the 
lease by giving a specified notice, and paying sums due under the con- 
tract to that time. 

B. is liable for the rent or royalty (it is immaterial by what name 
this is called) so long as he occupies the land under the agreement 
irrespective of the amount or character of the ore in the bank. The 
words '' upon which there is an iron bank" are matter of description, 
and neither a warranty nor a representation that there was a bank of 
merchantable iron ore on the land. 

President of defendant corporation testified ''the ore mined con- 
tained only thirty-three and one-third per cent of metallic iron, and was 
not merchantable. Ore situated as was the ore on this laud would 
have to contain fifty per cent of metallic ore before it would be mer- 
chantable." Commenting on this the court said: "We regard the 
two sentences taken together as a statement that there was no mer- 
chantable ore on the land, with the qualification giving the witness's 
understanding of the term ' merchantable ore,' which was merchant- 
able at the place of production. But this, it seems to us, is very 
different from the statement that it was not merchantable at all." 
Merchantable means "salable at market." 

Beatie v. Rocky Branch C. Co,, 56 Ap. 221 (1894). Plaintiff leased 
to defendant, for twenty years the coal mines and veins or strata of 
coal underlying a certain tract, with the exclusive right of mining and 
carrying away the coal. The consideration was a royalty, which was 
to amount to a stipulated minimum. It was, however, provided that 
payments should cease "after the stone coal underlying said lands 
shall be fully taken, and said mines entirely exhausted, according to 
the practical methods of mining," and the defendant agreed in mining 
to support the superincumbent bed of rock by sufficient props and 


stays. In defence to an action for rent, it was set up that there was 
no superincambent bed of rock forming a support for the coal, and 
consequently it could not be extracted or mined by any of the prac- 
tised or practicable methods of coal mining. Held^ that the covenant 
for surface support was not a representation or assurance that all the 
coal in the tract was covered by beds of rock. Nor was it a defence 
that the coal could not be mined by any practised or practicable 
method. There was no such modification in the contract 
J- _ Wharton v. StoiUenburgh^ 46 Law, 151 (1884). Where 

ew ersey. ^ le^a^ ^f i^n^j for purpose of mining for iron ore stipu- 
lated for raising annually a specified quantity of ore, or the pa^g for 
that amount, the non-existence of that quantity is no defence to an 
action for the rent. 

Cook V. Andrews^ 86, 174 (1880). By an agreement to sell 
^' and lease all the coal under a tract, with exclusive right to test 
the land for the same, and to open, mine, and remove the same, in 
case coal was discovered in workable quantity and quality, lessee 
agreed to pay lessor a certain sum per ton quarterly. A test was to 
be made within a stated time ; and upon failure to begin mining within 
a stipulated time, lessee was to pay a certain sum annually, which 
was to be treated as an advance on coal thereafter mined. Hdd^ this 
latter sum could not be recovered if there did not exist minable coal 
on the land. As to whether it did exist or not, the burden of proof 
was on the lessee. 

Tad T. Stamhaughj 37, 469 (1882). Sale of coal, grantee agreeing 
to remove the same with all reasonable despatch, to pay for coal mined 
a certain sum per ton, and if coal should be found in suflScient quantity 
to render it practicable, to mine thirteen thousand tons annually, or to 
pay for that quantity, in which event the surplus payments were to 
apply to any future year's mining in excess of said quantity. In an 
action for rent, it is no defence that there is not suflScient minable coal 
on the premises to equal the quantity for which surplus payments had 
already been made. 

1 anla. Sarlan V. Lehigh Co., 35, 287 (1860). In a lease 
Fennsy ▼ ^^ ^j^^ x\f^t to mine and take away coal from R and S. 

veins, and any other veins intermediate between said veins and Q. vein 
on the land of the lessor, there is no implied warranty that the land 
contains coal in workable quantity. Lowrie, C. J. : '^ Undoubtedly 
llie court will construct a warranty or other contract where none is 
in terms expressed by the parties, if our common sense of justice 
requires it, and it is essential to complete the definition of the relation 
plainly intended to be established between the parties, and if its teims 
can be clearly deduced from the instrument, and from the nature of 
the transaction. The cases cited for the plaintiffs abundantly illustrate 
this principle, and we may test this case by it. 

'' We do not discover that there is any unexpressed term for this 
contract, which common justice requires .us to supply, or any that is 
necessary to complete the definition of the relation intended to be 
established. We have already sufficiently indicated our opinion (3 
Casey, 439) that the expense of a fruitless search for these veins was 
not intended to be charged to the lessors ; and, of course, we cannot 


constract any such & warranty. It was undoubtedly ooal veins that 
were intended to be leased, and if the parties were mistaken about the 
fact, the result would be a right to dissolve the contract, and not t^ 
right to have a different contract in its stead. It is quite apparent 
tlukt the B. and S. veins were known subjects of contract, that they 
were supposed to exist in the lessor's land as they did elsewhere, and 
that the lease was intended as a grant of the right to find and work 
them. But we have nothing that entitles us to construct a warranty 
that the lessees should be able to find and work them." 

Kemble Ooal & Iron Co. v. ScoUy 15 W. N. C. 220 (1884). Plaintiff 
granted to defendant the exclusive right to mine, dig, and take away 
iron ore from certain land supposed to contain iron ore, for eleven 
years, lessees to pay fifty cents for each ton mined, and for the first 
year to pay rent on as many tons as they may be able to mine, ^^ but 
for any period of three years thereafter the rent in the aggregate is 
not to be less than $10,000, whether ore to that extent is mined or 
not, unless the irregularities of the ore veins should, to the satisfac- 
tion of the said parties of the first part, prove so great as to pre* 
vent the said parties of the second part from taking out ore to that 
amount." In an action of covenant for rent, *' the defendant offered 
to prove, inter alia^ that the premises did not contain forty thousand 
tons of workable, merchantable ore, fit for use in a furnace. This 
part of the offer was refused by the court below. We think in this 
there was a mistake; for though the coui*t might have refused to 
adopt the word ^ merchantable,' as depending too much upon the 
present condition of the market, yet certainly the ore which the 
defendant was required to pay for should be workable and fit for use 
in a furnace. 

*^ Whether it was such ore as, in view of the present condition of the 
iron market, could be worked profitably is not the question, for of this 
there is no guaranty in the lease ; but when the parties were contract- 
ing for and about iron ore, they must be taken to have meant some- 
thing that could be properly used in an iron furnace, and something 
that, in at least some possible condition of the iron market, would be 
worth working. The parties did not contract on the basis of chemical 
analysis or future possibilities, but upon the obvious facts of every- 
day life ; hence the material question was, Could the ore found in the 
leased premises, under the present methods of making iron, be prop- 
erly used for the purposes indicated? If it could be so used, and there 
was enough of it, the plaintiffs had a right to require a full perform- 
ance of the contract; if, however, there proved to be a failure in 
either of these particulars, then was the defendant released from pay- 
ment, either in whole or in part, as the case might happen." 

Muldenherg v. Henning, 116, 138 (1887). In a five years* ore lease, 
the lessees covenanted to pay thirty-five cents for every ton of mer- 
chantable ore mined, and to mine at least fifteen hundred tons annu- 
ally during the term, or, in default thereof, to pay a royalty of $525 
annually, and that the lease should be forfeited at the option of the 
lessors, if at the end of each year at least $525 as rent or royalty 
had not been paid. In an action of covenant to recover unpaid roy- 
alties for two years under the default rate, an affidavit of defence was 


iled averring that, thoagh the defendant had operated the mines in a 
workmanlike and skilful manner for about nine months, yet on account 
of the non-existence of sufficient ore, and its inferior and unmercbant- 
able quality, they were unable to continue. Held^ that the affidavit 
exhibited a good defence to the action* 

Clark^ J. : ^* If, however, it was established by actual and exhaus- 
tive search that at the time of the contract there was in fact no ore in 
the land, or no ore of the kind contracted for, it cannot be pretended, 
upon any fair or unreasonable construction of the contract, th|it the 
leiasees were nevertheless bound for the ^ royalty ' of $525 annually ; for 
the payment of the royalty was undoubtedly based upon the assump- 
tion of the parties that ore, ore of the quality specified, existed 
there. The subject of sale, it is true, is the exclusive right to mine 
the iron ore, but for that right the lessors were to be compejj^sated 
according to the number of tons of ^ clean and merchantable iron 
ore' mined; the lessees undertaking to mine fifteen hundrei} tonf 
annually, ^or in default thereof to pay $525 royalty. And, how 
could the lessees be in default in mining fifteen hundred tons annually^ 
if there was no ore to mine? We are not to construe the contract to 
require the lessees to perform an impossible thing. The $525 is qot a 
penalty, it is the price of the ora The grant was of the ore in place, 
and if the subject matter of the contract fail, the price is not payable* 
If there was no ore to mine» there could be no royalty to pay. 

*^B<it the contract having been made upon the assumption of the 
partiea that ore of the quality mentioned existed in the land, when it 
became manifest that the parties were mutually mistaken, the contract 
obligation ceases. It may turn out at the trial, of course, that the ore 
was in fact merchantable ; but as the case is now presented, ws: must 
assume the facts to be as stated in the affidavit of defence." 

McOahan v. Whoarton^ 121, 424 (1888). A provision in ^n ore 
lease that if the lessees did not quit possession and surrender the 
leasehold on or before July 1, 1884, ^' the very act of their refusing or 
n^ecting to quit possession and surrender this lease is hereby agreed 
on their part that there la a sufficient quantity of ore on said property 
to pay the royalty of $1,200 on Feb. 1, 1885," etc., is not to be 
held conclusive upon the lessees. 

Such provision in the lease is to be construed as an admission 
which threw upon the lessees the buixien of proving that there was not 
ore in paying quantities upon the leasehold, and if not there, the 
lessees were not liable for the stipulated minimum royalty. MuJUen- 
berg v. Henning followed. 

Garman v. PottSj 135, 506 (1890). Under a stipulation in a lease 
that *^ the parties of the second part agree to mine the iron ore at th.e 
rate of fifteen hundred tons per annum, on an average, provided the 
iron ore can be advantageously mined, and as much more as they see 
fit to mine," it is proper to construe the word ^' advantageously " to 
mean ** beneficially, conveniently, profitably, and gainfully." Tho 
covenant should not be so restricted as to relieve the lessees only 
from hidden defects in the mine, such as a fault, or some physical diffi- 
culty in getting out the ore ; it is intended for their benefit, and entitles 
Uiem to cease work at any time when it is no longer advantageous 

7 • 


from a commercial point of view. They are not liable for any rent 
or royalty, unless the ore would have been worth as much when mined 
as it cost to mine it. 

Paxson, C. J. : " The court below gave to the word ' advanta* 
geously ' its common and popular meaning. It is not a technical word 
or term of art, and the parties must be presumed to have used it in 
its known sense. As before observed, it was for the relief of the 
lessees ; hence if the mining was no longer advantageous to them, they 
ha<l a right to cease their operations. After defining, as we think 
properly, the meaning of the word, the court submitted to the jury 
the question whether the defendant couki further work the mine to 
advantage, and they fouhd specially that he could not. This sett|es 
the question of fact adversely to the plaintiff. It is to be observed 
..that the cost of getting the ore to the market was not allowed to 
enter into the case. It was only the cost of the ore at the mouth 
.of the mine that went to the jury. Surely, if it was not worth as 
muc;h there as it cost to mine it, the defendant could not mine it ad- 
vantageously to himself, however beneficial it might be to the plaintiff/* 

SpHnger v. ClHzem' N. G. Co., 145, 430 (1891). By a lease of 
land for the purpose of producing oil and gas, the lessee agreed to pay 
a certain sum upon the execution of the lease, a royalty on the oil 
produced, and if gas were produced in paying quantities a certain 
annual rental on each well. The lease also contained a covenant that 
the lessee should complete a well within six months, and in case of fail- 
ure to do so, should pay a certain sum semi-annually until completion. 

That the land was worthless for either oil or gas was not a good 
defence, for the lessor was entitled to have this fact made manifest in 
the manner agreed upon, or to demand the sum stipulated for delay. 

Timlin v. Brown, 158, 606 (1893). T. leased to B. for ten years 
certain land for the purpose of mining, etc., the coal contained therein. 
B. agreed to pay a royalty for all coal taken, to take out at least ten 
thousand bushels each year, and as much more as he chose, and in 
case he failed to get out so much, to pay for ten thousand bushels. 
In assumpsit for the minimum royalty for the last three years of the 
. term, the exhaustion of the coal is no defence. This case is distin- 
guished from Kemble Iron Co, v. Scott, McCahan v. Wharton, and 
Muhlenberg v. Henning, on the ground that in each of those cases the 
covenant for a minimum annual payment was not unqualified, the 
existence of the subject of the contract was unknown or uncertain, or 
if it existed, the quality could only be determined by actual use. In 
this case the coal was known to exist, and the quantity was as well 
known as it could be before it was mined out. ^^ The only element 
of uncertainty, the quantity, they took the risk of by an unqualified 
covenant to pay a fixed minimum sum." 

Cochran v. Pew, 159, 184 (1893). Where lessee in an oil lease had 
> covenanted to commence a well within a certain time, it is not a de- 
fence to an action for rent that it had been ascertained by methods 
practised and approved by men of skill in the business that neither 
carbon oil or gas existed in the land leased, the exploration having 
been made on neighboring land. 

^^ The conclusive answer in the present case is that the parties have 


dearly stipulated for the mode in which the trial shall be made, and it 
is to be by a well on this land. There is no room for science, any 
more than there is for a jurj*, to say that it will be of no use to do it, 
the parties have explicitly agreed on the exact thing to be done, and 
the exact amount to be paid for the failure to do it. . . . Under such 
circumstances it is never open to the covenantor to say that the thing 
would be of no value to the covenantee if it were done." 

Wil$(m v. Beedi Creek Coed Co., 161, 499 (1894). Plaintiff leased 
to defendant's assignor '* all of the merchantable coal contained in that 
certain seam," etc., for a royalty, '^ for each and every ton of mer* 
chantable coal mined and sold out of said seam," to be paid quarterly. 
^' It is further agreed that should said seam of coal prove faulty in the 
strata or unmerchantable in its quality, so rendering it impracticable 
to mine or dispose of the same in reasonable quantity, the said lessee 
shall have the right to abandon the same," etc. 

In an action for royalty it was not incumbent on the plaintiff to 
prove that it was practicable to mine merchantable coal in reasonably 
quantity. The burden of proving the contrary was on defendant. 

Boyef V. Faliner, 176, 282 (1896). The plaintiff, being the lessee 
of certain timber land, for the purpose of and with the exclusive nght 
of mining for iron ore for fifteen years, assigned her lease to the 
defendant, and entered into an agreement with him whereby he agreed 
to mine and pay for not less than one thousand tons of iron ore in 
each year, and to pay royalty on one thousand tons per annum 
whether he mined that amount or not. In an action to recover royal- 
ties it was set up as a defence that the defendant had mined out all 
of the ore and paid royalties thereon. This was held to be a good 
defence. This case is distinguished from Timlin v. Brown on two 
grounds : 1. The existence of the ore was not known. The land was 
timber land, and ^^ was leased for the purpose of digging for and min- 
ing ore which was supposed to be there, but it had not been developed." 
^. There was not an absolute agreement to pay royalty on one thou- 
aand tons per annum. The agreement was to mine that amount, and 
pay royalty thereon whether mined or not. ^^ That is, if he fails to 
mine the quantity of ore he agreed to take out, he pays for it just as 
if he had mined it. But he would only pay for ore which he might 
have taken out if he would. If the ore is not there, he is under no 
duty to pay, because he never could get it. The foundation of his 
liability to pay is the fact that the ore is there. If the ore is not 
there^ the fundamental condition of all liability is gone." 

Lehigh & Wilkes-Barre Coal Co. v. WrigJU, 177, 387 (1896). D. 
leased to P. all the coal under and upon a certain tract ^' for and until 
such time as all the merchantable anthracite coal shall have been 
mined and removed." In consideration thereof the lessee covenanted 
to pay a rent or royalty of twenty-five cents for every ton mined, and 
it was also provided that the lessee should pay a minimum annual 
rental, but should have the right if it should fail to mine the minimum 
amount in any year to make up the deficiency subsequently. The lessee 
paid the minimum rental for nine years, but in no year mined an equiv- 
alent amount It then refused to pay any further royalty, and sought 
to defeat a forfeiture on the ground that the contract was a sale of the 


ooal, the rental was the porchase^money, and the lessee had already 
paid for more coal than the land contained. This defence was held to 
be bad. The contract was a sale, bat it was not a sale for a lump 
sam. By its terms the lessee was bound to pay the minimam ren« 
tal as long as it retained possession, whether it mined, or oonld mine« 
ati equivalent araoant The object of tlie provision was to promote 
the rapid mining of the tract, and to protect the lessor in case the lessee 
should choose to mine slowly. 

WUliams v. Gujff^^ 178, M2 (1896). By the terms of a lease for 
twenty years, for the purpose of operating for oil and gas, it was pro* 
vided that if gas should be obtained in sufficient quantities and util- 
bs^d the lessee should pay $500 per year for each well, that he should 
complete one well within six months, and ^* if oil and gas, or neither, is 
found on this property within two years . . • then this lease to expire 
and be of no effect." The lessee completed a well within six moiitius 
found gas and utilized it, and subsequently the land became exhausted 
and no more gas was produced. This terminated lessee's liability for 

West Tixsini C^ifion v. MofUague, 40, 207 (1895). Where the 

^^^^ premises in a lease are described as *^ the premises 
known as the Bedford Salt Furnace property, together witii all the 
appurtenances thereto belonging, including six salt wells, tools and 
fixtures of the same," there is no implied covenant on the part of the 
lessor that there are on the premises six salt wells of any particular 
productive capacity, or suitable for the purposes for which they are 

II. Duties and Obuoations of the Lessee. 

A. Lesiee*s Duty to mine. 

When the tent in a mining lease is reserved in such a form 
that its amount depends upon the amount of mineral taken out of 
the ground, whether it be a fixed royalty or a proportion of the 
product, the lessee is bound to work the mine, and to work it 
with tea9onahU diligence. This obligation is an implied covenant 
of the lease, for a breach of which the lessor may recover in 
damages. But recovery of rent or royalty is a bar to an action 
for damages for the breach. 

The lessee is bound also to work the mine with reasonable 
care ; that is, not wilfully or negligently to prevent the expected 
accruing of the royalty. The payment of the minimum royalty 
named in the lease is not a defence, for that provision contem- 
plates a larger return, if it can be earned by mining with reason^ 
able diligence and care. 

Even where the amount of the rental is independent of the 
amount of mineral mined, the language of the lease may also 


show that the parties contemplated that the mine should be 
worked, in which case such an implied covenant would arise. 
And on the other hand the lessee may be relieved of the implied 
obUgation to mine by an agreement to the contrary. 

In the absence of an express covenant to mine, etc., there can 
be no duty to do so where the amount of the rental is not fixed 
by the amount of mineral taken out. If the consideration is 
secure at any rate, the lessor is benefited by the failure, or at 
least it can make no difference to him whether mineral is ex- 
tracted or not 

Owing to the peculiar nature of gas, its profitable working 
depending not upon its existence or quantity, but upon the pres- 
sure, t]ie general rule, as here laid down, may be subject to 
modification by the surrounding conditions, as was the case in 
McKnigkb v. Manufaeturers^ N. G. Co. (below, p. 103), where the 
subject is discussed at length. 

In Wisconsin, neglect to work the mine, by the usage of 
miners recognized by statute, works a forfeiture.^ 

jjj. . King v. Edwards, 32 Ap. 568 (1889). K. on Nov. 
^ ' 11, 1887, leased to £. the coal and minerals under certain 
land, the lessee covenanting to pay as rent five cents per ton for all 
coal, etc., sold from said premises, '< said rent to be paid as follows, to 
wit : the first days of January and July of each year." 

The dates for payment of rent simply fix the days for settlement, 
and the lease does not bind the lessee absolutely to mine ooal before 
those days. If the lessee is proceeding with the work with reasonable 
diligence, no forfeiture will take place by reason of the failure to 
produce coaL' 
jj _ ^^ Genet v. D. A H. Canal Cb., 136, 598 (1893). The 

^^ ^' ' lessee by negligent mining and failure to leave proper 
sapports caused the collapse of the mine, which rendered it impossible 
to work it In an action by the lessor for breach of contract, it was 
held not to be a defence that the minimum royalty had been paid. 
There was an implied promise not wilfully or negligently to incapaci- 
tate itself from taking out more than the minimum quantity. 

*^ The acceptance of a minimum royalty for the safety and benefit 
of the lessee equally with that of the lessor, when a larger one was 
contemplated on both sides, involves an obligation of the lessee not 
wilfully or negligently to prevent the expected accming of the greater 
royalty." ^* The question here is not one of waste or of injury to real 
IMopttrty, or even of a tort or wrong. It is whether, under this con- 
tract, fairly and justly construed between the parties, there was an 
andentood consideration for it, beyond the minimum royalty secured, 

1 Ann. StetB. 1889» sees. 1647, 1649, pp. 987, 988. 
> See this etm on p. 149. 



in the business option and choice of the lessee to mine a tnach larger 
amount, if under the existing circumstances it should think proper to 
do so." There was such a consideration, and a failure to comply with 
it was a breach of contract 

^ ^^ r* i< Conrad v. MoreJiead. 89, 31 (1888). A lease for 

Jf orth Carolina. „i^ety.nine years contained a covenant by the lessor 
that the leesee might enter upon the land and dig for gold, silver, and 
other metals and minerals, use timber and erect machinery, and at 
any time he thought proper surrender the lease ; and the lessee cov- 
enanted to pay one-tenth of the metal obtained. Held, there was an 
implied covenant by lessee to work the mine with reasonable diligence, 
and a failure to do so worked a forfeiture.^ 

MdxweU v. Todd^ 112, 677 (1893). Conrad v. Morehead followed, 
anla. ^^^^on V. Of Hem, 6 Watts, 362 (1837). A lease to a 
wnnmj vania. gf^ue^u^^gf ^f (4 l^jie privilege of quarrying and hauling 

away all the stone that he may find use for," for a certain term, at a 
certain price per perch, gives the lessee an exclusive right ; makes him 
owner during the term, and creates the relation of landlord and 
tenant. Su^ a lease is a contract on the part of the lessee tJiat he will 
work the quarry ; his failure to do so is a breach for which the lessor 
may recover damages. 

Lyon V. Miller , 24, 392 (1855). In covenant on a lease, whereby the 
lessee was given the right to dig and mine coal south of a designated 
line, the lessee to pay a certain sum for every bushel he may mine or 
dig upon said land, the lessors could not recover for coal mined north 
of a designated line, and that they were owners of that land was imma* 
tenal. For that they have their remedy by trespass. 

The lessors, however, could recover not only for coal mined on the 
described premises, but for coal which the lessee *^ reasonably would 
and should have mined " thereon. The measure of damage, therefore, 
was not the amount per bushel stipulated in the lease, but that amount 
less the value of the coal in the mine. 

Chalfant v. Williams^ 35, 212 (1860). A coal lease and fixtures were 
sold for $4,000, to be paid — $600 down, $216.62 at thirty days, fifty 
cents for each ton mined until $815 was paid, and then twenty-five cents 
for each ton mined until the whole consideration was paid. 

The fair interpretation of this is that the purchasers were to take out 
enough coal to pay at these rates tlie entire consideration. But parol 
evidence is admissible to show that at the time of the sale the seller 
said he would take the risk of the purchasers doing so, such testimony 
not being contradictory of anything expressed in the deed. 

Koch*s Ap.^ 93, 434 (1880). Where a right to mine ore or other 
mineral is granted, in consideration of the reservation of a certain por- 
tion of the product to the grantor, the law implies a covenant on the 
part of the grantee to work the mine in a proper manner, and with 
proper diligence, so that the grantor may receive the compensation or- 
income which both parties must have had in contemplation when the 
agreement was entered into. For the breach of this covenant there is 
an adequate remedy at law, and a court of equity will not entertain a 
bill to compel the grantee to perform his contract. 

^ See this case on p. 1 52. 


Smith ▼. MunhaU^ 139, 253 (1890). A lessee of certain tracts for the 
purpose of operating thereon for oil and gas, assigned them, in consid- 
eration whereof the assignee agreed that if lie or his assigns operated 
the leaseholds and foand oil in paying quantities, be or they would pay 
tlOO for the lease, upon which a paying well was found. The assignee 
surrendered these leases and took new ones from the land-owner which' 
he assigned to innocent parties, whereupon the original lessee sued for 
hreach of contract. Hddj that there was no cause for action. 

*' There is no promise or agreement on the part of Munhall or his 
assigns to operate for oil. Under the agreement he may or may not 
bore on all or none of the leaseholds. It is not alleged that M. pr 
any other person has obtained oil in any quantity on any one of the 

''The surrender of the leases, and the taking of new leases in his owp 
name, did not affect the legal rights of the plaintiff ; possibly it may be 
of advantage to him. We can see no reason to doubt that if at any 
time during the period for which the leases run any pei-son find oil in 
paying quantities on the land, the plaintiff can recover the stipulated 
conditional payment from Munball." 

McKnight v. Manufactiirers' N. G. Co., 146, 185 (1892). <* A lease 
of a mine or a quarry, at a rental to be fixed by reference to the quan-' 
tity of material removed therefrom, implies an agreement on the part 
of the lessee to work the mine or quarry. The reason is that, ^iiile^ 
the lessor does not lose his material out of the mine or quarry, he loses 
his income therefrom. Watson v. O'lleiii, 6 W.. 362; Koch's Ap,, 93 
Pa. 434. A lease of land for oil purposes imposes a somewhat differ- 
ent obligation upon the lessee. The oil is of such a nature tb&t, if 
not removed through wells upon the surface of the leasehold, it may be 
wholly lost to the owner of the land by reason of operations on lands' 
adjoining. The duty to develop the land, that is, to test thoroughly' 
the existence of oil in the rocks that should bear it, and if oil be f on nd, 
to sink so many wells as may be reasonably necessary in view of ^ ur- 
rounding operations to secure so much of the oil underlying the hind 
as may be obtained with profit, grows out of the nature of oil, and 
the methods by which the oil is reached and brought to the surface. Aif 
oil lease must be construed, therefore, with a due regard to the known 
characteristics of the business. Brown v. Vandergriff, 80 Pa. 1.42. 

*^ Oil and gas leases are ordinarily combined in the same instrument,'* 
and are classed together. For many purposes such classification is 
natural and appropriate; but this case brings us to consider an im- 
portant difference between oiL and gas, which poakes it necessary to 
distinguish for some purposes between an oil and a gas lease. 

^^OiK when brought to the surface, is gathered into a receiving tank* 
or tanks at or near the well. When necessary or desirable, it is 
removed by gravity or by pumping into the pipe lines tliat serve the 
district in which the well is located, and conveyed to storage tanks, 
where it remains until delivered to a purchaser, It is a matter of no 
consequence what the pressure may be at the well, for there can be 
none in the tanks except that of gravity. The well that throws off^ 
violently its five thousand barrels per day and that which relyctnntly 
gives up four or five barrels under the persuasive power of the piunp 


will have their product gathered into the same lines of transportation, 
or resting in the same storage tanks. Gas cannot be gathered, storedt 
or transported in this manner. If found in sufficient quantity, it is 
turned from the well into the line, and the pressure at the mouth of the 
well is the motive power by which it is driven through the line to tht 
consumer miles away. If the pressure at a given well is much below 
that in the line with which it is connected, the gas from that well can* 
not enter the line, but will be driven back by the superior force it en* 
counters at the point of connection. For this reason, a well prodacing 
gas in sufficient quantity to be profitably utilized if there was a maiket 
for it near at hand, may be entirely valueless if its product most find a 
tnarket at a distance too great to justify its transportation by a line oC 
its own. In an oil district, each weU, no matter how lai^e or how 
small its product may be, is separately operated, and a well may be 
profitably operated so long as its jrield pays more than the co0t of 
producing the oil. In a gas district this is impracticable. The prod* 
uct of many wells is gathered into one line so long as the pressure is 
sufficient. When the pressure in any one falls below the standard 
necessary for purposes of transportation, that well must be turned otf* 
Its product cannot be transported separately, and, unless it can be 
used near by, it is valueless. These well-known facts i)eculiar to the 
production of gas must be taken into account in the construction of 
leases for gas purposes." 

The lease provided that lessor should receive one-eighth of the <Mi 
produced ; that lessee should commence operations within eighteen 
months, and, if he failed to get oil in paying quantities, but a suffi- 
cient quantity of gas to Justify him in utilizing it at some point not on 
the premises, he should pay lessor a certain royalty so long as the well 
was so utilized. A gas-producing well was completed, and, after 
being operated for two years, was destroyed by an accident, and no 
further operations were conducted by the lessee. In an action for not 
putting down other wells to protect the territory against the effect of 
operations on adjoining lands, it was error to charge that a failure to 
drill such wells was a breach of an implied covenant, imposing a lii^ 
bility in damages, in the absence of a reasonable excuse therefor. 

^^ As we have already seen, every barrel of oil brought to the sdf* 
face may be utilized in the same way. Whether the well that pro- 
duces it is a strong one, yielding many barrels per day, or a weak one, 
yielding but few, is a matter that in no way affects the ability of tiM 
^producer to market his oil, or the prices to be obtained for it. In gas 
territory, the lessee may sink many wells and find gas in them all, but 
lie can utilize only such of them as have a volume and presmire sufil* 
cient to enable him to transport the gas through his line and deliver it 
to the purchaser. If no one of them has tlie requisite pressinre^ ihMl 
no one of them can be utilized ; the gas must be wasted, the cost of 
the wells will be lost, and the lessor entitled to no royalty. What is 
the proper way to develop and operate a gas lease is, therefore, a 
question beset with some difficulty. Its settlement requires some gen- 
uFval knowledge of the business, and some knowledge of the local Md» 
The lessee may have a good well, from which he can utilize the 
gas with profit. He may put down another on the same farm, kni 


thereby so reduce the pressure in the first as wholly to destroy its 
value, without getting a suflScient pressure at the second to enable him 
to utilize that. The gas, if coming fix>m one well, would be of great 
▼alue. Divided in such manner that the volume and pressure at each 
is below the necessary standard, the whole is lost. Thus the applica- 
tion of the rule laid down by the court below, as the jury must have 
understood it, might result in this, that the effort of the lessee to dis- 
charge the implied obligation of his contract for the common benefit, 
should end in the total destruction of the leasehold, and a common 
misfortune. Hie mistake of the court below was in failing to take 
account of and to read into the contract between the parties, the pecu- 
liar nature and characteristics of the business of producing and trans- 
porting gas, which the parties themselves well underBtood, and which 
their conti*act shows were before their minds when it was entered into." 

Moreover, when a lease provides that all wells shall be located by 
the lessor, he may not maintain an action against the lessee for not 
drilling additional wells, if he never fixed upon a location for any ad- 
ditional well, or called upon the lessee to locate one for him, the lessee 
having no right to drill except at points indicated by the lessor.^ 

HiU V. Joyif 149, 248 (1892). Recovery on an oil lease of the roy- 
alties provided for therein is a bar to a subsei^uent suit for damages 
for breach, during tlie same period, of the implied covenant for proper 
and sufficient operation. 

Jamettatcn & FraiMin B. B. Co. v. Egberty 152, 53 (1892). It was 
not a good defence to an action for rent that defendant had operated 
in all directions around the land, testing the general character of the 
land, and found that there was no oil or gas in the neighborhood. 

^* It does not follow that because there was no oil on adjoining 
property, oil might not have been found on this tract of one thousand 

Lehigh Jb WUkes^Baare C. Co. v. Wright, 15 C. C. R. 438 (1694). 
** All oontraets which require action do by implication of law mean that 
the thing to be done shall be accomplished within a reasonable time. 
It cannot be doubted that one puipose of the annual minimum pay- 
ment of royalty provided for by our mining leases is to indvce the 
lessee to mine and remove the coal with reasonable speed." 

^* In the case before us, under a mining lease dated Nov. 29, 1879, 
it appears that up to July 1, 1888, or for a period of nearly ten years, 
when the lessees decline to make further payments, the coal mined did 
not in any one year equal the minimum of $4,000 specified in the lease. 
In view of the circumstances of the case, it would seem that tlie min- 
ing of. the coat was not prosecuted with that diligence which is the 
implied obligation in et«rv similar contract, and w^h the lessors bad 
the right to look for in. this one." * 

B. Covenants to work Mines. 

Most often the lease itself contains a covenant to minei by th# 
ieirms of which the lessee is in that case governed. 

1 See aliio Kleppner r. Lemon, 176 Pa. 503 (1896)- 
< Affirmed in 177 Pa. 3S7. 


(a.) This may simply be a covenant to mine, or to mine in a 
certain manner. 

(6.) When a royalty is reserved there is generally a covenant 
to mine a certain amount, with an additional covenant, in case of 
failure, to pay royalty upon that amount. 

({;.) Oil and gas leases generally contain a covenant for the 
sinking of wells within specified times, or for their drilling to a 
certain depth, and often also for the prosecution of the business 
of exploring for and producing oil. 

Cases which have arisen from actions for damages for breach 
of this covenant are collected below. The nature of these cove- 
nants will be discussed at length under the title of " Forfeiture," ^ 
as the usual method of enforcing them is by forfeiture. 

(a.) CovefMfUs simplt/ to mine. 

Here the general rule is that the lessee is bound by the terms 
of liis lease, and that the mine had become unprofitable is not a 
valid reason why operations should be suspended. If, however^ 
it is shown that the mine has been wholly exhausted, and it ap- 
pears from the nature. of the covenant that the parties contra(ited 
on the basis of its continued existence, the condition is implied 
that, if the performance became impossible from the perishing of 
the person or thing that shall excuse the performance. Whether 
a mine is exhausted is a question of fact, and evidence of known 
custom and usage relating to the business of mining is admissible 
to show when a mine is deemed exhausted. 

Generally it may be said that one who covenants to mine the 
premises which he has leased must do so with reasonable dili- 
gence. Each contract, however, must be interpreted in accordance 
with its terms. 

nunoia. Walker v. Tucker^ 70, 527 (1873). See this ease on p. 91. 
Iowa ^e^€f» V. Philipps, 63, 550 (1884). Plaintiff leased to de- 

fendant certain lands for the purpose of mining coal, and 
defendant agreed to have the mine opened and in operation within 
nine months, and not to allow the mine to stand idle for more than 
sixty days at one time, and to pay plaintiff a royalty upon the coal 
taken out, that being the only consideration. i/eZd, plaintiff had a 
right to demand that defendant prosecute the mining of coal on his 
land with reasonable diligence, and to an injunction restraining de- 
fendant from using the shaft sunk on his land for the purpose of 

1 Pa^e 146. 


mining coal on an adjoining tract which defendant had leased while 
the mining on the land in question was neglected. 

Eeed v. Beck^ 66, 21 (1885). By a lease of land for mining purposes 
the lessee agreed, to pay a royalty on coal mined and taken out by 
the lessee, and to mine to an extent necessary to make the rent $500 
a year. And in case the rent or royalty for coal mined during any 
period of six months should amount to less than $250, the lessee also 
agreed to advance the difference, to apply, however, on future royal- 
ties, and also on the first day of each month — after the shaft is opened 
and mining commenced — to pay the lessor the amount due from the 
previous months. Heldy that though an action might lie against the 
lessee for failure to open the mine, an action to recover rent would not 
lie until the shaft was opened and mining commenced. 
Orecon ^^^ ^' Hodge, 15, 20 (1887). H. bought of R and D. an 

^^ ' interest in a lease of a mine for the consideration of '* $750 
cash, and (1,250 when 250 flasks of quicksilver were produced, to 
each of the parties of the first part." This agreement was made sub- 
ject to the condition that the management of all operations should 
remain in the hands of the owners of the other interest in the lease. 
The lease provided that the lessees should keep two men constantly 
employed. Held, that it was inferable that H. had undertaken to work 
the mine in connection with the co-lessees ; that if he ceased to do so 
when the mine if worked in the ordinary manner would have justified 
its development, the deferred payment would become due. The con- 
tract did not dbmpel the working of the mine after it appeared profitless 
to do so, and before a recovery could be bad against him, it must be 
shown that he neglected to operate the mine when it could have been 
worked consistently with his interest. 

1 an! -DcLvis V. Moss, 38, 846 (1861). Where, by the terms 

«"My ▼ *• of a lease, it was provided that if the lessee should 
eease mining operations for twelve consecutive months, it should be- 
come void,^ the entry of the lessees from time to time to clean and 
grease an engine which had been erected on the premises and used in 
mining, after the suspension of operations for twelve months, was not 
a continuance of mining operations within the terms of the lease, and 
would not prevent a forfeiture. 

MiUer v, CJiester Slate Co., 129, 81 (1889). Under a stipulation in 
a lease of a slate quarry that it shall be forfeited if the lessee fails 
*' to work the quarry " for three consecutive months, it is not abso- 
lutely necessary that the slate rock should be removed from the pit 
during the time mentioned. If the pit is obstructed by ice and snow, 
or filled with water, so that it is impossible to take out slate, the doing 
of anything necessary for the removal of these obstnictions will be 
held to be within the expression '' working the quarry." 
^^ N.Y.&E. T. Iron Co. v. Stephens, 5 Lea, 468 (1880). 

Ttonnessee. ^ granted to B. for thirty years the privilege of taking 
iron ore from a ceitain lot, ^^and in the event the ore in said lot 
became exhausted, then 6. has the privilege of opening and working 
another lot adjacent." Held, that exhaustion did not mean that every 
spadeful of ore should be mined, or that it should be taken out where 
the outlay would exceed its value, but that the mine should in good 
faith and by proper and approved methods be exhausted. 


A. is entitled to recover the value of ore taken by B. from adjacent 
land before the exhaustion of lot originally leased. 

Petroleum Co. v. Coed, Coke, & Mfg. Co., 89, 381 (1890). By a 
lease of ^^ mineral and petroleum interests" for ninety-nine years, 
lessees bound themselves to pay '^ one-tenth part of the net profits of 
whatever may be discovered and worked in and upon said lands 
deemed advisable to be tested and worked by " the lessees, and they 
agreed ^^ to commence testing said property within three years' time." 

Under this the lessees were under no obligation to test or work 
unless they deemed it advisable; there was therefore no considera- 
tion, and the lease was void. It was a mere option based on no 

If, however, the contract be construed as binding the lessees to test 
within three years, that provision is a condition, and failure to comply 
therewith works a forfeiture of the lease. No other compensation was 
ocHitemplated than that which would result from the discovery and 
working of mines. The testing, therefore, was of the very essence of 
the contract, not only with respect to time, but as to the thoroughness 
and certainty with which the mineral value of the land should be ascer- 
tained. The test required was such as would discover not only the 
existence of minerals, but their commercial value, considering their 
abundance and accessibility. It should afford such informatioa 
as a prudent investor would desire before expending money ia 


« • 

(b.) OovenanU to mine a Certain Amount. 

In this case much the same principles are applicable as stated 
iu the preceding section, and if the lessee sees fit to covenant to 
mine a certain amount, he will, as a general thing, be held to 
strict performance. Or, in case the ore is not taken out, he will 
be held liable for the payment of rent or royalty the same as if 
it had been taken out, — this being regarded as equivalent to 
stipulated damages, which may not be reduced by evidence of the 
actual value of the mineral, — and this, whether or not there is 
an express covenaut to pay royalty on a minimum amount. 

To be excused the lessee must show that he has worked the 
mine to exhaustion, or has worked all the ore there is in it^ 
The terms of the covenant in each case of course govern its 

j^^^ Flynn v. Coal Co., 72, 738 (1887). A lea^e of coal land 
provided that the lessee should pay a certain royalty on coal 
taken out, but it also provided and made it of the essence of the con* 
tract that a certain amount of coal should be taken out. 

Hdd, that the lessee was bound to pay royalty on the amount agreed 
to be taken out, whether actually taken out or not, and that, too, 
although a portion of the term was necessarily occupied in making 
preparation to begin mining. 


Y^. GUmore v. Ontario Iron Co., 86, 466 (1881). Plain- 

tiff and def eDdant entered into an agreement by whick 
pbitttiff leased to defendant certain land for sach term as would enable 
the lessee to mine and remove the iron ore therein. Defendant agreed 
to mine all the ore where the vein was fifteen inches thick, and where 
ft was of less thickness it was at lessee's option whether he wonld mine 
er not. He also agreed to pay twenty cents a ton for all ore mined, 
and to mine at least eight thousand tons annually. In an action to 
recover royalty : Held, the defendant was bound absolutely to take out 
an the ore where it lay in a vein fifteen inches or more thick, and also 
where it was thinner, unless it used the option given it not to do so. 

If there was a vein of the specified thickness, the company was 
homd to work it to exhaustion; if there was not, it was bound to 
work what there was, to let plaintiff know that it exercised its option, 
er to sorrender the lands ; otherwise, the only answer to a demand for 
royalty was, that the land had been exhausted of ore. Until one of 
these occurred, the defendant was bound to pay at least $1,600 a 

MehOyre ▼. MelnJtyre Coal Co., 106, 264 (1887). Plaintiffs leased 
to L. certain coal lands for twenty years. The lessee covenanted to 
mine not less than seventy-five thousand tons a year for the first five 
years, and not less than one hundred thousand tons per annum there- 
after, and to pay a rent or royalty of thirty cents per ton on all coal 
mined, payments to be made quarterly. In case the coal mined in any 
one year rell short of the quantity specified, the lessee covenanted to 
pay a sum equal to the amount be would have had to pay if he bad 
mined the minimunu Then followed this provision: ** Provided, that 
if in any year the party of the second part shall mine and carry away 
more than the proper minimum quantity for such year, such excess, 
or so much thereof as may be necessary, may be set off against the 
deficiency of any other year or years within the same division of the 
term hereby demised; so much of such excess as is applied to make up 
such deficiency having been paid for, shall not be paid for again." In 
an action to recover rent or royalty for a quarter daring which no coal 
had been mined, it was shown that during the preceding years of that 
division of t2ie term the defendant, assignee of the lessee, had mined 
and paid royalty on an excess over the minimum quantity specified. 

Held, ihnt the lessee was entitled to set off sufficient of tiie excess 
to make good tbe deficiency ; that he was not required to mine con- 
tinuously during each year of each division of the term the minimum 
quantity specified ; nor was the application of an excess limited under 
^ terms of the lease to a deficiency occurring in the preceding y<;ars, 
but that the lessee had the right to mine during the first year of each 
division and pay for the whole amount required for that period ; and, 
having done so, unless he mined an additional quantity he would be 
discharged from further liability. 

^. _ . JSreuiz v. MeKnight, 53, 219 (1866). See p. 156. 
Fwnsjivania. p^^ ^ Borroughs, 54, 329 (1867). The lessee of 

a eoal mine i^reed to pay so much per ton for coal mined, and take 
out a certain number of tons annually, and if he should fail to so do, 
to pay the same amount of rent as if he had done so. Held, that 


settlements for coal taken out were not, as matter of law, a discharge 
of liability for breach of covenant to mine a certain quantity. The 
covenant to pay rent for all the coal mined and taken away was dis- 
tinct from the covenant to mine a certain number of tons. 

The contiguous mines were leased by the same lessors to one lessee. 
It was stipulated in both leases that the lessee was not bound to mine 
more coal than could be taken away by cars furnished by a certain 
railroad ; it was no excuse for not working one mine that the cars 
furnished were insufficient to take away coal mined in the other. He 
should have worked this mine so that it could have had its proportion 
of the cars furnished. 

That the coal which the lessee failed to take out was of greater value 
at the end of the lease than if it had been taken out, is not a ground 
for reducing the recovery for the breach to nominal damages ; the rent 
per ton agreed upon was stipulated damages to the extent of the non- 

(c.) Covenants to sink Wells and conduct Oil Operations. 

Much the same rules prevail, as to these, as are given in the 
preceding sections, modified by the di£Ference pointed out in Wes^ 
moreland Nat. Gas Co. v. DeWitt, 130 Pa. 235 (p. 82), between 
ordinary minerals which are stationary and these fugitive and 
volatile products. There is some difficulty in measuring the 
amount of damages in case of breach of covenant ; but some such 
method as that indicated in Bradford Oil Co. v. Blair should be 
adopted as the best available. 

New To k Cliamberlain v. Parker^ 45, 569 (1871). Plaintiff 

leased land to defendant with a provision that defendant 
should put down a well by a certain time to a certain depth, and pay 
three dollars a cord for the wood standing on the lot. No rent was 
* reserved, and no term of demise was stated ; but a right of entry for 
condition broken was reserved. Defendant failed to put down a well, 
and plaintifp brought suit for breach of contract Court below held 
the measure of damages to be the cost of putting down ^the well. This 
was held to be error. The damages should have been nominal. The 
putting down of the well was of no benefit to plaintiff, as the oil would 
all belong to the defendant, unless after it was dug defendant's default 
in paying for timber would enable plaintiff to re-enter. There was 
consequently no los9 to plaintiff. 

PennsTlvanU Bradford Oil Co. v. Blair, 113, 83 (1886). A. leased 
^ ' his farm to B. to explore for and produce oil, at .a 

royalty of one-eighth of the production. The lease contained the fol- 
lowing covenant: ^^ To coQtinue, witli due diligence and without delay, 
to prosecute the business to success or abandonment, and if success- 
ful, to prosecute the same without interruption for the common benefit 
of the parties." B. assigned an interest in said lease to C. and D., and 


they ^ith B. assigned to E. Two weHs were bored on the farm, both 
of which were producing wells. £. refused to bore any other wells. 
In an action of covenant brought by A. against £. for breach of the 
GOTenant above quoted : Held^ that the said covenant was not the 
personal covenant of B., but a covenant that ran with the land^ and 
therefore bound E. Under this covenant the lessee's obligation was 
to prosecute the business to as great an extent, as, taking the knowl- 
edge, skill, and appliances available at that time into consideration, 
could reasonably be done and leave the lessee a profit. 

The measure of damages for breach of said covenant is as follows : 
Ascertain how much more oil the plaintiff ought to have received than 
he actually did receive, and the value of it during the times when it 
should have been delivered to him ; from this deduct the cost of pro- 
ducing what ought to have been produced at the time under the cir- 
cumstances and with the appliances then known, and add to this 
remainder the interest on it from the time when tlie oil ought to have 
been produced to the present time. 

*^ We do not think damages for not securing flowing oil are to be 
ascertained exactly as if it were a stationary mineral. 

^^ If oil be not utilized at a proper time, it may be lost forever by 
reason of others operating near by. Not so with stationary mineral. 
It remains for future development. While there is some diflSculty 
in the way the damages were ascertained in this case, yet no better or 
more accurate manner is pointed out" 

Galey v. KeUerman^ 123, 491 (1889). Where a lease provides for 
drilling a well within a certain time, and in the event of failure to do 
80, the payment of a certain sum of money, and also provides that 
the lease shall be avoided by the failure to fulfil this covenant, the 
lesjsor may, in case of such failure, recover the price of delay; and 
the lessee cannot set up as a defence that the lease is avoided by his 

Kleppner v. Lemony 176, 502 (1896). It is an implied condition of 
every lease of land for the production of oil therefrom, that, when the 
existence of oil in paying quantities is made apparent, the lessee shall 
put down as many wells as may be reasonably necessary to secure the 
oil for the common advantage of both lessor and lessee. In deter- 
mining when and where such wells shall be located, regard must be 
had to the operations on adjoining lands, and to the well-known fact 
that a well will drain a territory of much larger extent when the band 
rock in which the oil or gas is found is of coarse and loose texture, 
than when it is of fine grain and compact character. Whatever ordi- 
nary knowledge and care would dictate as the proper thing to be done 
for the interests of both lessor and lessee under any given circum- 
stances is that which the* law requires to be done as an implied stipu- 
lation of the contract. 

A lease conferred on the lessee ^* the exclusive right of drilling and 
operating for petroleum and gas on the plaintiff's land." If oil and 
gas were found certain royalties were to be paid. There was no dis- 
tinct covenant for putting down wells on the land except that which 
related to the first or experimental well, which was to determine the 
value of the land for oil purposes. The right to divide the leasehold 


and to sublet the parts into which it was divided for oil pnrpoaes was 
distinctly reserved by the lessee^ The defendant had oil and gas 
leases on adjoining properties. He pat down one well on plaintUTa 
land, and other wells on adjoining lands near to the boundaries of 
plaintiff's land, with the express purpose of securing the oil undsr 
plaintiff's land through these wells. HM: 1. That the lease contem* 
plated the production of the oil underlying the plaintiff's lot by means 
of operations conducted on its surface ; 2.- That the number and loo»* 
tion of tiie wells necessary to carry out the purposes of the contract 
was a subject belonging primarily to the lessee ; 3. That in disposing 
of this question the lessee was bound to take into consideration tfais 
fact that his lessor was the owner of the oil, and to arrange and con* 
duct his efforts to bring it to the surface in such manner as should 
best protect the interests of both parties to the contract ; 4. That he 
was not bound to put down more wells than were reasonably neoe»* 
sary to obtain the oil of his lessor, nor to put down wells that would 
not be able to produce oil suflScient to justify the expenditure; 5* 
That the fact that the oil might be obtained in time through other 
wells, on the lands of other owners, was not enough to excuse ths 
lessee from his implied undertaking to operate the land for the best 
interests of both owner and operator. 

In such a case the court may decree, on bill in equity filed, that 
unless the defendant shall drill another well within a certain time 
specified his leasehold estate in said land shall be deemed to be abaa'* 
doned, except as to the well actually drilled on plaintiff's land, and a 
certain specified space around it 

To the same effect are WiUa v. MawufauAur0r£ N. G. Co.j 180, 228 
(1889) ; Fennel v. Ouffey, 189, 841 (1890), which see on pp. 159, 168. 
__.^ vir^«i Fleming O. S Q. Co. v. So. Penn. O. do., 87, 645 
west virgima. (^393) Qu Feb. 22, 1889, J. leased to defendants' 

assignor a tract of land for oil purposes. By the lease the lessee cove* 
nanted '^ to commence operations for a test well, within one year from the 
date thereof,!' '^ and to complete the same within eighteen months from 
said commencement; " ^^ and in case said party of &e second part fails 
to so commence and complete said test well, the lease shall be for- 
feited and void." The lessee made the preliminary surveys for the 
purpose of ascertaining the location of tiie oil belt in the autumn of 
1889, and fixed upon the spot for the test well on Jan. 80, 1890. 
In the autumn of 1889 he also contracted with D. to drill the test welU 
work to begin on January 80. D. cut timber for his derrick on the 
tract between Feb. 1 and 6, 1890, and in January contracted with 
one B. to haul the machinery to be used in drilling the well, but 
this hauling was delayed by the impassable condition of the roads. 
The well was completed Aug. 21, 1890. 

Seld^ the operations for the test well were commenced within the 
year; there was no forfeiture, and the plaintiff to whom J. leased on 
Feb. 28, 1890, had no title. 

MiNi^^G leases: rigqts and duties arising thereunder. 113 

(d) CavenafU$ as to Manner of working the Mine and a$ to the 

Condition of the Mine, 

The lessee is held to the obserrBuce of snch eoyenants when 
■ot entiiely inconsisteui with the sldlful aad proper working of 
the nume^ Horeaver, he will be required to ezereifte all reasoiv 
aMe diligenee in carrjing out the terms of his lease, ami will be 
held liable for a disregard of the same unless prevented or inter- 
fered with by the lessor ; such covenants, having been made with 
a new to the reversion of tiie property to the lessor, will prevail 
against established custom. These covenants are not personaf, 
but run with the landy and become binding upon the assignee of 

minojs Coppinger v, Jrmetrtmgj 6 Ap. 637 (1880). A covenant 
by leasee in a lease of land with the right to^ use reck aiui 
bniD lime, tiiat all rubbish and spalls should be removed at the expira- 
tion of the term, is binding on the assignee of the lease. 

Coppinger v. Armstrongy 8 Ap.'210 (1881). But this covenant doc^s 
not apply to rubbish and spalls on the premises at the execution of the 
kase, but only to such as result from the operations under the lease. 

Cons. Coal Co. v. ScJiaefer, 135, 210 (1890), affirming s. 0. S\ 
Ap. 364 (1889). S. demised the coal under certain land to N. & II. 
for twenty-five years, upon condition that they should begin to sink a 
shaft within three months, and continue the work. Lessees cove- 
nanted to ^^ work the mine in a sound, safe, and workmanlike manner, 
80 as not to ruin the works, and leave necessary pillars, and prop up 
works securely." The lease also provided for forfeiture for failure 
to comply witii an^ of its covenants. The lessees sunk a shaft and 
did some work, but became insolvent, and stopped in March, 188G* 
The mine was finally abandoned in April, and it began to fill with 
water. It required three months to fill, and the mine was never 
worked afterwards. On June 22, 1886, the leasehold was sold at 
jodicial sale to the coal company's grantor. In April, 1888, S. gave 
notice that he terminated the lease. Held^ in action of forcible 
detainer, he could recover. "To* permit the mine to keep on fillii g 
up with water, and to permit the mine to remain full of water for a 
long period of time, thereby causing detriment to the mine, and even 
danger to its continued existence, was surely a breach of the covenant 
to work the mine in a sound, safe, and workmanlike manner." 

The word **ruin," as used in the contract, is not confined in its 
neaning to an utter destruction of the works, but must be presumed 
to have been intended to include a serious impairment of the works, 
and anything which would essentially promote their injury, decay, or 

J Randolph v. ffalden^ 44, 327 (1876). The lease of a coal 

*' mine stipulating that the lessee was to leave the mine in good 

working condition at the expiration of the lease, he could not remove 



the supports and pillars from the mine even after the supply of coal 
was exhausted. ^^The custom of miners to remove the pillars cannot 
be permitted to control the contract when the effect of allowing such 
custom to prevail would be to render nugatory express stipulations of 
the contract." 

Clark V. Babcock, 23, 164 (1871). Lease provided that 

:c igan. jggg^j. gjjouicl put the salt-works in complete order by a 
fixed time, and in case he did not, that the lessee might do so, and 
deduct the expense from the rent. Heldj if the lessor had failed to 
put the works in order, then if the well were capable of being put in 
order, it was lessee's privilege and duty to do so ; but if lessor, by 
what he had done, had rendered it incapable of being put in order, 
tlien lessee was not bound to spend any money on it. 

It being contended that the work of the lessor in attempting to put 
the works in order diminished the flow and injured the well, but the 
expert evidence, which was uncontradicted, tending to prove the con- 
ti-ary, the court will not take judicial notice of the means used in the 
construction of salt wells to make the tubing serve its proper purposes, 
and to shut out the detrimental matters which would otherwise injure 
the work. 
j^^^ J Keeler v. areen^ 21.Eq. 27 (1870). A stipulation in 

ew ersey. ^ lease of a quarry of a horseshoe shape, and having 
faces on the northwest, north, east, and southeast sides, that ^^said 
quarry shall be worked as the face is now open, following the good 
merchantable stone as deep as such stone shall run, and in good 
quarrying shape," is not violated by quarrying one of the faces to a 
greater extent than the other, provided the good merchantable stone 
was taken out to the depth indicated, and the face was left in good 
quarrying shape, that Is, with a good, fair, even surface, and not with 
ja;;ged recesses. 

*-enn3yivania. ^^^^ ^ McDonald, 83, 144 (1876). Lease of privi- 
lege '^of going on the south end of his farm, near No. 14 schools- 
house, and from there west to the old barn, and mining and taking out 
all the coal he can reach beneath the surface;" lessee to work the 
mi'.ie in such a manner as to do the least possible damage to the land ; 
to fill up holes made, and level off all banks and ridges, so as to leave 
surface smooth and natural. Held, lessee not confined to one open* 
ing, but might make as many as are necessary to reach the coal. 

Timlin v. Brown, 158, 606 (1893). Lessees covenanted to give up 
the mine at the end of the term *' in a good, workmanlike condition." 
Wiien they began work they put up a small derrick to raise coal from 
the bottom of a shaft. They subsequently abandoned this method, 
adopted a slope, and the shaft was of no further use except as an air^ 
shaft. They removed the derrick. This was held in no way to affect 
the workmanlike condition of the mine, and was not a ground for 

South CaroUna McBee v. Loftis, 1 Strob. Eq. 90 (1845). Where 

by the terms of a grant of the right of mining the 
grantee is entitled to work, free of expense, etc., and is in no other 
respect restricted, he may conduct the work in any manner he thinks 
proper, either by himself, his servants, agents, or assigns. 

mNiNO leases: bights aiid mixies arising thebeundes. 115 

C. JDutt/ and Covenants to pay AaM. 

Taxes on coal, like other minerals, whether in place or mined, 
are of course, in the absence of covenant, payable by the owner 
thereof. If there is a severance of ownership of surface and min- 
eral in place, the latter being land, the owner is liable to taxa- 
tion thereon as land.^ The obligation is not transferred to the 
owner of the surface by calling the instrument creating the 
mineral estate a ^^ lease/' If it creates an ownership of the min- 
eralsj the ^*' lessee " (vendee') mtist pay the taxes thereon ; if it 
creates but an estate for years, or a privilege or license to mine^ 
the ^^ lessor " must pay the taxes on the unmined coaL 

This general rule may be changed by contract, and the obliga- 
tion of paying taxes on unmined coal as between lessor and 
lessee may be put upon the ^Messor" (vendor), though the lease 
amounts to a sale, and creates an absolute ownership in the 
"lessee" (vendee). In this event, if the vendee or "lessee,** 
upon demand, pays the tax to the proper collector, he may recover 
the amount tliereof from the lessor, or set it off in action for 
royalty or rent. 

ivania. Logan v. WasM'ngton CourUy^ 29, 878 (1857) • 
FennsyiTaxiia. '^jjgpg ^jj^ owner of coal land has sold the right to take 

all the coal that is in his landy and retained the land itself, the owner of 
the land and the owner of the coal are each taxable according to their 
several interests. But this principle does not justify a higher valua- 
tion on the two interests taken separately, than there would have 
been if both had continued in the same person. 

Chevington & Bunn Co. v. Levns, 10 W. N. C. 196 (1881). The tax 
imposed upon the corporations by the seventh section of the act of 
April 24, 1874 (P. L. 68), of three cents upon each and every ton of 
coal mined by such corporations, or by their lessees, is a tax upon the 
corporate franchises, to be measured by the number of tons so mined, 
and not a tax apon the coal itself. 

The lessees in a coal-mining lease covenanted to pay all taxes and 
imposts whatsoever assessed or charged during the continuance of the 
lease upon the demised premises, or any part thereof, or upon the 
coal produced therefrom. Beld^ that this clause of the lease does not 
include the tax on the corporation (the lessors) imposed by the 
seventh section of said act of April 24, 1874^ which tax is payable by 
the corporation and not bv the lessees. 

Sanderson v. CUy of Scranton, 105, 469 (1884). Where the sur- 
face of land and the minerals in jylace thereunder have been severed 
by the agreement or conveyance of the owner, and the respective 
divisions have become vested in different owners, the municipal au- 
thorities are bound to levy their taxes according to the ownership and 

1 niiiiois. Hurd*8 Her, Stats. 1895, ch. 94, sec. 6, p. 1053. 


value of these divisionB. And each owner can be made responsible 
only for the tax on his own interest, whether underlying strata or 

The liability of the owner of coal or mineral in place for tasoa- 
leyied thereon results from the nature of his estate or interest, and; 
therefore he is not relieved from this responsibility, on the principle 
inclusio uniua est exdtuno altertusj by an express covenant in the 
mstmment of severance that he shall pay all taxes levied upon the 
coed mined^ without recourse to the lessor to refund the same. 

D. L. A W. B. E. Co. V. Sanderson, 109, 583 (1885). Vendee la 
last case having paid taxes on the coal in place, under protest, brought 
this action to recover the amount thereof from the vendors. It was 
held that no recovery could be had, and the principle of Sanderson v, 
Scranton was approved. 

dty of Scranton v. QilberC, 16 W. N. C. 28 (1885). When the 
title to the surface of land and to the coal thereunder is vested in one 
person, the whole must be assessed together for purposes of taxation 
as land. The surface and the coal cannot be separately valued and 
assessed, as in the case where the surface and substrata are vested in 
different owners. The fact that in such case the aggregate valuation 
on the surface and on the coal beneath is no greater than should be 
put on the land, does not authorize the separate valuation and assess- 
ment of the coal. 

JBeckaher v. Sheaf er, 17 W. N. C. 323 (1886). While, as a gen- 
eral rule for the purposes of taxation, all improvements upon land, 
such as houses, coal breakers, etc., constitute part of the land, yet 
persons owning different portions thereof may agree among them- 
selves to such an apportionment of the taxes in respect of such im- 
provements as they may see proper. 

A lease of coal laud contained a covenant on the part of lessees to 
pay all taxes upon improvements : Held, that the lessees were bound 
by said covenant to pay the increased amount of taxes assessed upon 
the land by reason of its increased value in consequence of the erec- 
tion upon it of houses, coal breakers, etc., by such lessees. 

Woodward Y. D. L. & W. R. B. Co., 121, 344 (1888). There was 
a provision in the coal lease in this case that the lessees should pay all 
taxes which might be imposed upon the surface of that portion of the 
land occupied by them and upon the improvements by them made 
thereon, and upon the coal after it was mined, .and that the lessors 
should pay all the taxes imposed upon the coal in the ground, and 
upon the surface not occupied by the lessees. The lessors were bound 
by this covenant, although the lease was such an instrument as under 
Sanderson v. Scranton conveyed a fee simple in the coal, and the 
lessees having paid taxes on the coal in place could recover the 
amount thereof from the lessor. 

This liability of the lessors arises from the contract, and is not 
released by a subsequent conveyance to the lessees of a portion of the 
surface, with a provision that it should in no way affect their interest 
in and title to the coal under the lease, nor the rights of either party 
under its provisions, which were to remain as if the said conveyance 
had not been made. 


Flory T. HeUer^ 1 Monaghan, 478 (1889). This was a lease of 
land with the privilege of quarrying for slate, with a provision that 
machinery and fixtures placed there by lessee should belong to him. 

The landlord was assessed taxes on the land and paid the same, 
and the tenant was assessed taxes on the quarry and machinery which 
lie had placed upon the land. HeJd^ the tenant cannot deduct taxes 
paid by him from royalties due the landlord as rent. 

Miles V. D. <k H. CancU Co., 140, 623 (1891). In a lease of coal 
land which created a divided ownership of coal and surface there was 
a provision that the lessors should pay all taxes on the leased land; 
they were held liable for the taxes on both surface and coal in place. 
And the lessees having paid taxes demanded of them upon the coal in 
place had the right to retain the amount thereof out .of royalties 
otherwise due the lessor. 

Pettibone v. Smithy 150, 118 (1892). A covenant in a coal lease 
providing ^^ that the said lessees shall pay all and every the United 
States, State, and local taxes, duties and imposts on the coal mined, 
the mining improvements of every kind, and the surface and coal land 
itself,** does not include a municipal assessment to defray the cost of 
building a sewer, and to provide for the cost of grading a street 

D. Bent and Royalty} 

^^ Mining rent " is a term which is used to mean the considera- 
tion money of a mining lease, whether that lease creates a 
tenancy, grants a license or an incorporeal right, or conveys a fee. 

It may be (1) a fixed sum ; (2) a certain annual sum ; (3) a 
royalty on the amount of minerals extracted payable at fixed in- 
tervals or times ; (4) such a royalty, but not less in the aggregate 
than a fixed amount each year ; (5) such a royalty and a cove- 
nant to mine a certain minimum amount or pay royalty thereon. 

As rent must be something issuing out of the thing granted, 
and not a part of the thing itself, when the consideration is a 
part of the minerals, it is not strictly a rent, but an exception. 

According as the lease creates a fee, an incorporeal right, a 
tenancy or license, the rent may be either purchase-money or 
a true rent. 

If the lease out of which it arises is a true lease of the soil 
or a grant of a right to take minerals, the money or thing which 
is paid therefor is rent and has all the qualities thereof.^ It 
is a preferred debt. It is income, and such as has accrued goes to 
tiie personal representatives, and not to the heir of a decedent. 
It belongs to the life tenant as profits.' 

^ 8ee also title " Forleitnze/' p. 147. * See pages S-U, where the cues oa 

' Noith Caioliiia Code, 1883, sec. 1763. this point are collected. 


If on the other hand the rent arises from a conyeyance which 
passes a freehold estate in the minerals, it is the purchase-money 
thereof, and has none of the qualities of rent. The fact that it is 
called rent, that it is paid in certain amounts at fixed intervals^ 
does not establish its nature. If it is paid for the minerals in 
the ground and not merely for the use of the premises, it is not 
rent properly so called, but purchase-money, — a part of the 
xorpiis of the estate and not of the profits issuing out of it.^ 

Although it is purchase-money, the duty to pay is absolute and 
does not depend upon the existence of a corresponding amount of 
minerals, unless, of course, made so dependent by the terms of the 

Whatever may be the nature of the estate granted, the rent 
is not dependent upon the taking of minerals, unless rendered so 
by the terms of the instrument creating it 

The remedies for non-payment of rent are an action on the 
contract in all cases ; if the amount of the rent is dependent upon 
the amount of mineral taken, a bill for an account will lie. And 
if the consideration is a true rent, the ordinary remedy for the 
recovery of rent by distress is available by the landlord. 

When a lease has been assigned by the lessee, even with the 


landlord's consent, the original lessee is not relieved from lia- 
bility upon the covenants contained in the lease. The covenant 
to pay rent being one which runs with the land, the assignee is 
liable thereon. But of course he is liable only for rent which 
accruei^ after the assignment.^ 

In the absence of other arrangement by the terms of the lease 
or contract, where the consideration is in the shape of a royalty, 
or is otherwise fixed by the amount of minerals mined, it is the 
duty of the lessee to ascertain that amount. The returns of the 
lessee as to the amount mined, if accepted by the lessor, are con- 
clusive on him in the absence of full and satisfactory evidence 
of fraud or mistake. If they are not accepted, or settlements 
are not made upon them without objection, their correctness may 
be assailed by the lessor in the same manner as may that of any 
other account. In such case expert testimony is admissible to 

^ In Indiana, owners of land and others ^ See Chap. III., Div. I. 
interested in the rental or royalty of coal * See further. Chap. IV., DiT. L, when 

mined have a lien therefor provided by the cases are collected, 
statute. Rev. Stat. 1888, sec. 5471. 


imnKG leases: bights and duties arising thebetjndsb. 119 

show the territory mined and the amount which it should have 

In Ohio the interest of lessors of coal mines is protected by 
statute, which gives the right of access to and examination of 
the machinery by which the coal is weighed, and also of the 
accounts thereof.^ 

g Lehigh Zinc & Iron Co. v. Bamford, 160, 665 (1898). 

' A lease of a zinc mine and concentratiDg works for 
ten years was upon a specified royalty per ton for ore concentrated^ 
payable annuaUffy bat in case the royalty in any one year fell 
below $1,000, then such a sum was to be paid as to make the 
amiual rent that year amount to $1,000. JTeZd, that the lease 
intended^ the payment of the minimum rent of $1,000 should be 
made annuaUy^ and should not be postponed to the end of the 

jjjj^^^ Manning v. Frazier^ 96, 279 (1880). Where the owner 
of land bargains and sells aU the mineral thereunder^ 
and grants to the vendee the right to enter and search for sAid 
minerals, and to dig, mine, explore, and occupy with the necesBary 
structures, and to mine and remove all the coal, limestone, etc., for 
which the vendee agrees to pay a stipulated price per ton for the 
various minerals removed, payable quarterly, the grantor will have a 
vendor^s lien on the minerals not mined and removed, for unpaid |;ur- 
chase-money, which he may enforce by a sale of the minerals in the 
ground. The stipulated price is purchase-money of the real estate, not 
of the minerals removed. It is not a collateral covenant. 

The payment of so much per ton is only a mode of ascertainment of 
the purchase-money, the amount due each quarter depending upon the 
quantity mined during the preceding three months. 

Consolidated Coal Co, v. Feers^ 150, 344 (1894). In considera- 
tion of the lease of the sole right to mine coal, the lessee agreed 
to b^in mining coal from said land within twelve months from the 
date of said lease, and to guarantee the lessor a yearly royalty of 
not less than $1,200 after the expiration of twelve months from 
that date; and that if after the expiration of one year no roal 
should be mined from said .tract of land, and the said leasee 
should pay the monthly instalments of $100, said payment t^hbuld 
be considered as advanced royalty, and said lessee was to have the 
right to mine coal sufficient to make the amount of coal mined 
equal the amount of royalty paid, provided that the royalty paid 
should not be less than $100 per month; that said lessee should 
carry on the work in a good and workmanlike manner, and take 
as much coal from said land as a proper regard for the safety of 
the mine would admit, and to pay the plaintiffs a royalty of three- 
eighths of a cent per bushel for all coal mined, etc., and that such 
royalty should be paid monthly on the twentieth day of the month for 
0(mJ mined the preceding month. 

1 Rev. Stet. 1890, sec. 305. 


Tbe Iftst dame refemd to the payment of $1,200 a year 
.19 well as to the three-eighths of a cent per bushel. Payments of 
81 Do fell due on the twentieth of each month, and could be sued for 
Its they fell due. The provision that lessee sfaoold pay $1,200 a 
year whether ooal was mined or mft^ was a reasonable one, and could 
be enfovoed as liquidated damages. It is not neoessaiy, in order to 
recover this rent, to allege and prove that there was minable coal 
tiiat defendant ought to have taken out, in the absence of any cove- 
nant as to the extent of the coal in the land leased. 

McDoweU V. Hendnx, 67, 518 (1879). Boyalties and 
*^*' rent accruing on a lease of land, for the purpose of min- 
(n':^ for coal, after the death of the lessor go to the heir and not to the 
executor, and those accruing before the death go to the executor. 
- Reed, v. Beck^ 66, 21 (1885). Lease of land for mining 

*^*' purposes provided for the payment of a royalty on coal mined 
an I taken out by the lessee, and an agreement by the lessee to mine 
to an extent necessary to make the rent $500 a year. And in t^ase 
the rent or royalty for coal mined during any period of six months 
should amount to less than $250, tiie lessee agreed to advance the 
(Vuterence, to apply, however, on future royalties, and also '^ on the 
lirst day of each month (after the shaft is opened and mining com* 
m 3 need) to pay the lessor the amount due from the previous month." 
Ihld^ that though an action might lie against the lessee for failure to 
o:^3n the mine, an action to recover rent would not lie until the shaft 
TV as opened and mining commenced. 

Steele v. MillSy 68, 406 (1886). The assignment of the monthly 
r )yalties payable as rent under a coal lease is not the assignment of an 
open account (Code, sec. 2087), but of a right under a contract (Code^ 
see. 2082), and the assignor is bound only by equities which Itie lessee 
had against the assignor before notice of the assignment, and not by 
exilities arising before suit was brought upon the assignment. 

Carr v. Wliitehreast Fuel Co.^ 88, 136 (1898). Lessee was to pay 
a royalty upon the clean, merchantable salable ooal, but none npon 
41 ut, pea, and slack coal. The means used at the time the lease was 
made for separating the lump from the fine coal, including the screens, 
were found to be ineffectual for the purpose, and screens of another 
4)\ttern were adopted. Held^ the change of screens was authorized 
by the facts, and in any event the lessor had no ground of complaint, 
i 1 the absence of proof, that his royalty was reduced thereby. 
J- . . Cross V. Tome, 14, 247 (1859). The rent of a quarry 

ary an . ^^^ certain number of cents per perch (the amount varying 
with each and every perch of stone quarried) is a ceHain money rent 
within the meaning of the act of 1834, ch^ 192, regulating the mode of 
distraining for rent. 

Miss uri ^w«**» V. HurUsvUle G. * 3f. (7o., 72, 585 (1880). The 
^ * recovery of judgment for rents by a lessor against lessee 
of coal does not vest the property in the coal in the lessor, the recov* 
cry being upon the terms of the lease, not npon entry. This is tme 
whether the judgment is satisfied or not. 

Ohi Burgner v. Humphrey, 41, 340 (1884). The compensation «* 

^' the grantor under the terms of the contract was to be regulated 

by the amount mined, which was to be ascertained by reference to the 


biHs of the diggers and ike hooks of the grantees. Upon allegatioii 
thflct the former were destroyed and the latter false, evidence of eegi- 
neers was admissible to prove the number of acres mined and the nawb&t 
of tots which each acre shoidd yield, to show the inaccuracy of the books. 
r—iMwi Tpanla Oreenottgh^s Ap.^ 9, 18 (184^). A claim for money, 

^^ ^ payable as rent, by a co-tenant for the privilege of tak- 

11^ coal oat of a mine at so much per cubic yard, is a preferred debt 

**Hie question Iten is, w'hefther the appellant's claim was a privi* 
leged one ; and that depends upon the nature of their contract with the 
decedent. It was the griort of the rtg^ to mine coal at so much per 
ton ; and the redditus was consequentiy a certain rent for whic^ a dis- 
tress Hii^t have been made. In substance, tt was as distinctly a lease 
as that in Offennan v. Starr; nor is that case distinguishable from this 
in any respect, except that in one the lease was to a co-tenant, and in 
the other H was to a stranger. But it is certain titat one }oint tenant 
or tenant in common m^y lease his part to bis fellow." 

Tiley t. Moytrs, 48, 404 (1862). Where the rent of a coal bai& is 
for the first year, tiie putting of the bank in good order and thereafter 
a fixed sum per bushel mined, and by the terms of the lease no one else 
was to have the privilege of tojdng coal, it is not an eviction for the les- 
sor to enter and take coal from the bank without interrupting the 
actual operations of the lessee. But such action was a Irreach of cove* 
nant entitling the lessee to set off damages in an action for rent. The 
rent was not the consideration of the possession, but the equivalent of 
the coal actually taken. 

SilKngford v. Oood^ 95, 25 (1880). One who leased a coal tract on 
royalty made monthly returns, purporting to be correct statements of 
coal mined and payments thereon, wbich were received without objection. 

These were conclusive on ^e lessor, in the absence of full and sat- 
isfactoiy evidence of fraud or mistake. They were in the nature of 

DuJTs Ap., 21 W. N. C. 491 (1888). Where a tract of coal 
land is let for mining purposes at an agreed rate of royalty per ton, 
Ifte royalty Tias none of the qualities of rent. It is not paid for the 
use of the tract by a tenant, but for the coaX^ the chief article of value 
in it, by a purchaser. Royatties are a part of the corpus oftJie estate^ 
and not a profit issuing out of it. Every ton of coal mined reduces the 
value of the tract and lessens the security of a mortgage upon it 

Fairchild v. FairchM, 9 Atl. Rep. 255 (1887). A demise of aU the 
tool under the surfoLce of a specified piece of land is a sale of the coal, 
and the sums due by the lessee to the lessor as royalties are not rents, 
but purchase-money of real estate. Royalty accruing after lessor's 
death is collectible by his administrators and distributable as person* 
alty. It is not the profits of realty, and is not the subject of curtesy. 

Oram's Estate, 5 Kulp, 423 (1889), Com. Pleas. Royalty on coal 
lease, in syllabus called " a contract for privilege of mining coal," is 
rent, and, as sudh, the landlord is entitled to a preference therefor 
oat of proceeds of "sheriff's sale.^ 

Drake v. Lacoe, 157, 17 (1898). By the terms of a coal lease les- 
see agreed to pay ten cents per ton '^ miner's weight" for all coal 

^ A contraiy Tiew is taken in a dictum by Pdnxose^ J., in Heckman's Est, 15 P^ 
C. C. R. 264 (1894). 


mined. In the absence of evidence of an agreement as to a different 
meaning, this is '^ such quantity of ooal as was computed at a ton in 
paying the miner who mined by the ton." The master found from the 
evidence that it meant such quantity of coal, slate, and dirt as was 
agreed upon between the operators and miners to be sufScient to make 
a ton of prepared coal. It appeared that about twenty per cent of the 
mine wagons' contents was deducted as worthless, and the miner was 
paid for the remainder as coal. The lessees paid royalties on the 
number of tons prepared for market in this way. The lessors received 
full statements of the coal thus mined during all the years that returns 
were made to them, and made no objection as to their accuracy until 
suit was brought. Seldj that they could not recover for a greater 
number of tons. 

Lehigh A WUkes-Barre O. Co. v. Wright, 177, 387 (1896). A lease 
of all the coal in a certain tract until it should be mined and removed, 
contained an agreement to pay a royalty and also an annual minimum 
rental, whether T!oai -was mined or not, and a provision for forfeiture 
for failure to do so. This was a sale of the coal, and the rental was 
the purchase-money therefor. But the duty to pay was absolute and 
not dependent upon the existence of a corresponding amount of coaL 
The continuance of the estate depended on the payment of the xenL 
A failure to pay ended the estate. 

Shoemaker v. Mt. Lookout (7. Co., 177, 405 (1896). Lessees in a 
ooal lease were to pay a royalty of twenty-five cents per ton ^^ when 
such coal sells at an average of two dollars per ton or less at the 
breaker, and when the said coal shall sell at the breaker for more than 
two dollars per ton," then an additional royalty of twenty per cent 
of such excess. In calculating the price at the breaker lessees were 
entitled to deduct commissions paid to sales agents. This applied to 
a commission paid to agents in consideration of their relinquishing a 
contract so that lessees might have the advantage of selling direct. 

Collins V. Mechling, 1 Super. Ct. 594 (1896). By the terms of an 
oil and gas lease the lessee was to pay the lessor $10 a month until 
the completion of the well, and one-eighth of the product when it was 
less than one hundred barrels a day ; and it was also provided that if 
the well should produce oil in paying quantities, the lessee should pay 
$600 in thirty days from the time the well was completed. When the 
well was completed, it commenced to flow at the rate of twenty barrels 
an hour, and continued with a decreasing product for about four 
months, when it entirely ceased to yield. Held, that the lessor might 
recover the $600. The intention was that it should become due if the 
well produced during thirty days such an amount as would render it 
profitable to operate it during that period. It was not necessary that 
it should produce enough to repay the cost of sinking the well. 
"West Virginia Childs v. Hurd, 32, 66 (1889). Where lands are 

^^ ' leased for the purpose of mining coal and iron in con- 
sideration of a royalty which is to be paid before the coal or iron is 
removed from the premises, the lessor is entitled to be paid before the 
mortgagee of the lease, out of any funds in the hands of the lessee's 
agents arising from the sale of coal and iron and paid into court 

The lessee was treatvd as a mortgagor in possession who was entitied 
to rents and profits & > against the mortgagee, the lien of the latter 
affecting only the coTj^ 'is of ih» estate. 


III. The Premises. 

A. BiffhU growing out of the Description or Nature of theee or 

Incident thereto. 

The general rules governing the construction of the description 
in conveyances are applied in the case of mining leases. Where 
there is any doubt as to what has been demised, the question is 
one of intention which must be determined by construing all 
parts of the lease together. Where boundaries are given with 
reference to fixed and known objects, they control courses and 

Whenever disputes occur because of some ambiguity arising 
out of a vague description of the premises which are to be 
mined upon, or from the peculiar nature of these, the Courts 
endeavor to effectuate the intention of the parties at the time of 
making the lease. 

But on the other hand, when it is plain from the written clauses 
that operations are to be conducted upon certain designated and 
described sites, the lessee will be made to carry on his operations 
within these boundaries, and parol evidence is inadmissible to 
•show the contrary in the absence of fraud or mistake. In the 
case of oil leases, however, where the lessee is restricted to oper- 
ating at designated sites on the premises, he has the protection of 
the entire premises ; no one else may bore thereon. Sometimes 
such a protection outside of the premises is conferred in terms by 
the lease. The extent of the demise often becomes a question of 
fact for the jury, but only when the meaning of the language 
cannot be determined from the instrument itself, but can be 
arrived at only by ascertainment of surrounding circumstances. 
Then the question is one not of construction, but of the solution 
of a latent ambiguity, existing in words which of themselves are 
plain in meaning. 

Ai«K««.« Pierce v. Tidwell, 81, 299 (1886). The Tidwells agreed 
* with Pierce for the consideration of $20 per month, to give 
him, his heirs and assigns, ^' the exclusive right to possession of all 
minerals that underlie their land which forms part of the mine called 
and known as the P. W. Coal Mine," and to all the timber growing 
thereon suitable for mining purposes ; also a right of wajr to and from 
the mines whenever required. It was further agreed that ^' the said 
$20 shall be paid only as long as the said mine is worked to ad- 
vantage." H'Mj the words " said mine " mean the P. W. Coal Mine, 
and not merely the part of it upon the Tidwell tract 


P. mined on three tracts, the Tidwell being one, his whole operation 
being known as the ^^ P. W. Coal Mines." Having exhausted the coal 
on the Tidwell tract, he continued to use the right of way over it, but 
refused to pay the sum of $20 per month agreed. Held, he was bound 
to do so, so long as he worked the P. W. Coal Mine to advantage or 

Calif nla. ^^^ ^' Mission Transfer Co., 95, 92 (1892). A deed 
^^ of a part of a tract of land excepted '* all oils, petro- 

leum, asphaltum, and other kindred mineral substances/' and ^^the 
right to erect machinery, sink wells, bore, tunnel, dig for, work on 
and remove the same from the premises/' also rights of way, and to 
lay pipes. 

The grantee of the balance of the tract and the reserved minerals 
was not confined to those portions where there were surface indicar 
tions of oil, but might go upon the land to develop it and ascertain 
whether oil exists. 

jjj. . Kamphouse v. Oaffner, 73, 453 (1874) . Where boundaries 

^ ' are given with reference to fixed and known objects, they 
control courses and distances. 

A lease of a one-half interest in that part of the lands of the estate of 
K., between G.*s ^^sand level and the range he is working now. Said 
claim is seventy-five feet wide, and is known as the old B. and R. Range. 
The ground hereby leased fronts on the slough, . . • and shall tub 
from thence east on all the lands of said K. estate." ^^ East *' does 
not necessarily mean due east, but is controlled by the previous words 
designating the location. Evidence is admissible to show tbe location 
and course of the range already being worked by the lessee, for the' 
purpose of applying the lease to its proper subject-matter, and explain- 
ing a latent ambiguity. The mines involved in this case were lead 
mines, upon the sides of a series of bluffs, the usual mode of mining 
which was by running levels or drifts horizontally from the slough 
into the bluffs, the ore being found in crevices in the rocks mnning 
back from the base of the bluffs. The position which seems to have 
the approval of the court is, that G., who started from a point on the 
bluff within the frontage named in his lease (in general form as above), 
might thence follow the crevice or range in an easterly direction though 
it crossed beyond a due east and west line extending from tbe point of 
the lessee's frontage nearest G.'s possession. 

Indiana Indianapolis N. O. Co. v. Exbhey, 135, 857 (1893). The 
owner of a tract of eighty acres granted to K.'s assignor 
twenty feet square of the same ^^ for the purpose and exclusive right 
of a gas well on said twenty- foot square tract," with rights of way 
(Over and through the entire tract. The grantor further covenanted 
** not to drill or suffer or permit others to drill or put down any other 
gas well or wells on any part of said entire eighty-acre tract," except a 
single well for residence purposes for himself or his neighbors* 

K. was entitled to an injunction against a stranger who had entered 
upon the eighty-acre tract and was sinking a gas well. He had a right 
to all the gas under the eighty-acre tract &at could be obtained by lur- 
ing within the twenty-foot square, save that whidi might be obtained 
from one well for the domestic use of the owner and his neighbors. 


^^ Oskdloasa College v. Western Union Fud Co., 90, 380 (1894). 
^ Where a ndning lease preserves from miDing the ground east 
and aoath of a building, mining is precluded in the square lying be- 
tween southeast eomers of the land lying directly east and south. 

ChetAer Co. y. Lucas, 112, 424 (1873). This was 
an action of trespass to recover the value of emery and 
iron ore alleged to have been removed from plaintiff's land. Plaintiff 
was the grantee of the metals and minerals in a tract of land bounded 
** beginning at the centre of the vein of iron ore, on the line between 
Wri^t and Dewey," thence, etc. At the trial, the location of the grant 
being in dispute, there was conflicting evidence whether there was any 
such vein, and whether there were not more veins than one, and whether 
the parties agreed upon a line of rocks as marking the place of a sup- 
posed vein, and whether the vein, if any existed, was a vein of emery 
and not of iron. The judge charged, in substance, that if there was 
one vein of iron on the line between Wright and Dewey, that vein would 
te the starting point in the description of the deed, and parol evidence 
would not be admissible to affect it; but if there were more than one 
such vein, parol evidence would be admissible to show which vein was 
intended ; if there was no vein, and the parties agreed upon certain 
rocks as marking the location of a vein, those rocks would be the 
starting point ; if there was not a vein of iron ore, but was a vein of 
mineral supposed by the parties to be iron ore, and called in the deed 
a vein of iron ore, that vein would fix the starting point of the location. 
Held, that this charge appeared to be adapted to and sufficient to meet 
the different aspects of the case. 

Puma Ivania Spencer v. KunUe, 2 Grant, 406 (1855). Where 
^ ' there were two leases, the first of coal mines, and the 

second of miners' houses, on a certain tract, and thg latter by its ex- 
press terms was made part of first, the two leases constitute but one 
entire demise, and goods and chattels on any part of the premises are 
liable to distress for rent of houses. 

Tiley v. Moyers, 43, 404 (1862). Where a lease described the 
premises as ' ^ their coal bank and its appurtenances," and there was 
a dispute as to the extent of the demise, it was a question of fact for 
the jury. 

Allison*s Ap.n 77, 221 (1874). In a lease of a lot of land "for 
the sole and only purpose of mining and excavating for petroleum, 
foal, rock, and carbon oil," and " a protection of ten rods on the east 
side " and '* eight rods on the north side " of the lot, the '' protection " 
includes the area on the northeast corner included by the extension 
of the outside lines of the " protections." The lessor or his assignee 
will be enjoined from boring for oil within this area, and a court of 
equity will award damages for the trespass and waste of so doing. 

Mays V. Dwight, 82, 462 (1876). D. & A. leased to M. a tract of oil 
land, describing it, with one partly bored well thereon. M. agreed to 
sink this well deeper, and to deliver to the lessors one-fourth of its 
product. Both parties supposed this well to be upon the leased tract 
It was afterwards discovered to be on an adjoining tract leased by S. 
to M., who thereupon offered to deliver possession of the premises 
leased to D. & A., and refused to pay the royalty. D. & A. filed a 


bill for an account against M. As this was a case of matoal mistake 
against which equity will relieve, the bill was dismissed. 

Freeh v. Locust Mt. Coal Co., 86, 318 (1878). Where the lessor 
not only gives his tenant the power but makes it his duty to explore 
and mark a theoretical line upon his own premises, the tenant cannot 
be treated as a trespasser if in an honest attempt to ascertain the line 
he should chance to pass over it. 

Rounsley v. Jones^ 2 Walker, 112 (1883V A reservation of the ore 
on the west side of a tract which extends in a northwesterly direction, 
no division line being adopted, means the ore on the west of a line 
drawn through' the middle of the tract in the direction of its greatest 
length, and not of a north and south line dividing it into two equal 

In this case, if the latter construction had been given, all the ore in 
the tract would have been ^' on the west side." 

Hughes v. Coal Co,y 104, 207 (1883) . A conveyance of coal provided 
as follows : ^^ The said pai*ty of the second part does agree to pay as 
follows : For each acre of good merchantable coal contained in that 
portion of the land which lies along the west side of the ravine on the 
east side of the S. property the sum of $140 per acre, and for that 
upon the remainder the sum of $70 per acre." The evidence showed 
that east of the S. property, beginning at the northern part and run- 
ning south, there was only one ravine, but that this ravine separated 
into two about opposite the middle of the S. property. No. 1 running 
southeast, and No. 2 southwest, Held^ that the deed presented no 
latent ambiguity, and that the construction thereof was for the court, 
which rightly decided that ravine No. 2, being the one nearest the 
S. property, and in such a position that it must be crossed by a line 
running east from said property to ravine No. 1, was the one intended 
in the conveyance. 

Ashman v. Wigton, 20 W. N. C. 280 (1887). An agreement that 
one of the parties is to have the right to take coal on the north side of 
a gangway, to be run as provided in the agreement, does not mean 
that the line of the gangway is to be extended and become the boun- 
dary, but that the gangway itself is to be'the dividing line, thus giving 
the right to mine only on the part of the tract which is bounded on the 
southwest by the gangway, and on the southeast by a line drawn from 
the south end of the gangway at right angles to its general direction 
to. the eastern line of the tract. 

Duffleld V. Huey 129, 94 (1889). Where the premises in a printed 
oil lease are described, but it is plain from the written clauses that the 
operations are to be conducted only on certain designated and de- 
scribed sites, the lessee is restricted to these sites. And parol evi- 
dence to the contrary is inadmissible in the absence of fraud or 

Duffleld V. Hue, 136, 602 (1890). The lessee in the above lease, 
however, has the protection of the entire premises, and equity has 
jurisdiction to restrain the lessor or others acting under him from drill- 
ing wells thereon outside of the designated sites, and thereby lessening 
the production of wells drilled by the lessee, such injury being destruc- 
tive of his rights, and incapable of adequate remedy at law. 


JMay y» Barnes^ 172, 831 (1896). By recorded articles of agree- 
ment R. sold to L. a tract of 128 acres, described by adjoiners, 
and also ^^the coal right in the northern hill, as far as the centre, 
between the southern and* northern boundary," with a right of way. 
This passed a fee in the coal, the location of which could be established 
by parol evidence. It was error to hold that the conveyance failed be- 
cause of the vagueness and uncertainty of the description. 
WlMODBin ^^^ ^' Thomas, 39, 317 (1876). An oral lease of 

' the exclusive right to mine the ^^Watkins range or 
works " upon the lessor's land conveys a right not only to mine said 
range so far as it had been actually opened and worked, but also to 
follow it to the limits of the land. But such lease did not give the 
right to work a vein on another portion of the land between which and 
the former no connection was shown to exist within the said tract, 
although a connection had been traced by a circuitous courae through 
the adjoining land of another. *1?lie '^Watkins range" was a flat 
opening, the ores being found in a horizontal instead of a vertical 
seam. Though the original opening might have been connected with 
the second vein -by drifting in a diraction across the range, yet in the 
absence of proof this will not be presumed merely from the nature of 
the opening. 

JRoss v. Heathcockj 52, 557 (1881). For a consideration named 
defendant conveyed to a company for the purpose of mining and 
digging the mineral thereon, certaiu described tracts of land. These 
were described by government subdivisions, followed by the woixls 
^^ and known as the Heathcock range." This did not give the 
grantees the right to follow this range and mine thereon when it was 
traced or developed subsequently on other land belonging to the 
defendant. Nor is this affected by the fact that the parties at the 
time of entering into the contract wer6 mistaken in the course of 
the range. 

Nor is this right gained by the following subsequent conveyances or 
contracts : — 

1. A lease of the right to construct a dam and maintain a water- 
course on the said land. 

2. An adit lease giving the privilege of opening an adit or level 
thereon, with the privilege of sinking the necessary shafts to run said 
adit, and of following and digging after any mineral that the company 
might discover in running said adit or sinking said shafts, ^' but not to 
follow such mineral further east than where the said adit or level 

B. Fixtures and Appurtenances. 

There is nothing peculiar to the law of mining on these sub- 
jects. For the principles involved, the reader must refer to the 
books on Real Estate Law, Conveyancing, and Landlord and 
Tenant. The plan of this work does not contemplate a discussion 
of them, but- the principal cases in which these principles are 

128 THX LAW or mails akd MUffzyGw 

appiinl to mines and miniiig propertj are adlected iMie M m een* 
Tenieiii arrangemettl^ 

iwwmLi.„u^ Jfemi« V. Judd, 14, 59 (1859). A Bteara engiBt, 
boiler, and pump, bedded into the ledge snfficientlj to 
get a level, and eovered by a shed for shelter, and used in working 
a mine, are fixtures of the class knQwn as trade fixtores, removable 
by the tenant during the term, or so long as he holds undcv a right 
to consider himself a tenant. This right of removal may be con- 
trolled by agreement of the parties or by local usage. 

Such machinery as described above is included in the term ^ im« 
provements ^ in a provision in a lease that improvements were to go 
to the lessor on forfeiture. 

IHetz V. Mission Transfer Co.^ 95, 92 (1892). The owner of a 
large ranch conveyed a part of the tract, excepting *^all oils, petro* 
leum, asphaltum, and other minerals,.'* and then conveyed to another 
the rest of the ranch and the reserved minerals. 

The grantee in the first deed ''granted and sold'* to the grantee in 
the second *'all the buildings, tanks, derricks, pipes, pipe lines, fix- 
tures, and all other personal property whatsoever,** situate upon any 
portion of the ranch. This was not a mere conveyance of these as 
chattels, but gave the right to occupy sufficient land for the use of 
said property for the purposes and in the manner it had heretofore 
been operated. 
_j-- Dobschuetz v. Holliday^ 82, 371 (1876). A steam-engine, 

^^ ' machinery, and fixtures attached to the soil by a lessee 
thereof, for the purpose of hoisting coal from mines, including all 
boxes and necessary appurtenances, remain a part of the lessee's 

Hewitt V. General Elec. Co.y 61 Ap. 168 (1895). Where the lessee 
of a mine puts into it a machine for mining coal without the inten- 
tion of making it a part of the realty, but merely for the purpose of 
transacting the business of mining, and the machine may be removed 
without injury to the realty, it does not become a part of it. 
«-. J. Bewick v. Fletcher^ 41, 625 (1879). F. entered intaan 

sau. agreement with L., by which he put up machinery for bor- 
ing a salt well on L/s land, in consideration of which he was to have 
had a share of the property and business. The well was never sunk, 
and L. sold the land to B. Held^ the machinery did not pass. ^^ The 
machinery was put upon the ground to sink a well, which is a tem- 
porary purpose. It was not so attached to the fi*eehold as not to be 
removed without injury, and therefore, on well-settled principles, it 
could not become realty without either being intended or especially 
adapted for permanent use as a part of the freehold." 

Lake Superior Co. v. McCann^ 86, 106 (1891). A lease of 
premises for the purpose of mining, etc., iron ore, provided that the 
lessee would at the termination thereof peaceably surrender the 

^ In California bj statute certain things Civ. Code 1 895, sec 1077. See *' Mortgage 
are declared to be affixed to a mine. Civ. of Leasehold/' p. 140. 
Code 1885, sec. 661 ; and in Montank by 


xiNiNG leases: bights and duties arising theseunder. 129 

premifles, etc, " an^ other improvements and erections that may be 
thereon, — engines, boilers, machinery, tools, implements, and other 
movable personal chattels excepted." 

This made engines and boilers personal property as between the 
lessor and an execution creditor of lessee, and having been so made 
by the agreement, they cannot be treated as trade fixtures. 
VewJenev Aud&nried v. Woodward^ 4 Dutcher, 265 (1860). 
^^^* ''It satisfactorily appears from the proofs that it was 
the business of the tenant of a colliery and not the landlord to pro- 
vide a breaker fqr preparing the coal for market." 
PenoavlTaniA. i>at;« v. Moss^ 88, 846 (1861). A lease of the 
^ entire mining right of and to a ceiiain piece of land, 

with the privilege of erecting the necessary machinery and buildings, 
passes so much of the surface as is necessary to the enjoyment of 
tins right, and an engine erected on the surface is attached to the 
subject of the grant, and is subject to the law relating to fixtures. 

Carey v. Bright^ 58, 70 (1868). It is not error to refuse to charge 
a jury that a sale of all the seller's interest in a colliery included ''all 
the movable property belonging to and used at this place in the 
mining of coal, and that the word ' collierv ' is a collective com- 
pound including many things, and is not limited to the lease and 
fixtures of a tunnel, drift, shaft, slope, or veib from which the coal is 

A colliery is a place where coals are dug, and while many things 
about a colliery may be fixtures, and pass as a part of the freehold, 
mere loose movables about such an establishment, in the absence of 
any usage or genei-al understanding, are not such. 

Heffner v. Lewis^ 78, 802 (1878). Plaintiff and defendant leased 
adjoining coal lands to the same lessee; and a tunnel was made 
through plaintiff's land to reach defendant's, upon which was the 
opening to the slope. A levy was made on the leasehold interest in 
defendant's land, with the appurtenances, consisting, among other 
things, of "the railroads in and about, and connected with the said 
mines." Whether this included the rails of a railroad laid in the 
tunnel was a question for the jury. These rails were personal 

Williams* Ap., 1 Monaghan, 274 (1889). The sale of land having 
upon it a slate quarry and factory, carries with it as fixtures such 
articles as arc necessary for the purpose of carrying on the business 
of mining and manufacturing slate, and were actually used for that 

MorUooth v. Gamble^ 128, 240 (1888). By ailicles of agreement a 
coal plant, including chutes, tipple, sidings, and cars, with the coal 
under a tract of land, was sold and conveyed, the privilege of mining 
and removing the coal to continue not longer than for a specified 
term, the coal then unmined to revert to the vendor. 

There was no covenant to repair nor to return anything upon the 
premises connected with the works, but the agreement contained a 
clause leasing to the vendee certain miners' houses for use while 
the coal was being mined, not longer than for the term specified; 
the vendee not to remove houses, shops, or other buildings. 



Ill such case the agreement was an absolute conveyance of the 
coal plant and coal which should be mined, and the vendee had the 
right to remove the chutes, tipple, sidings, cars, and other appliances 
necessarily connected with the mining and transportation of the coal. 
The lessor could not maintain covenant, therefore, at the expiration 
of the lease. 

RUchie v. McAllister^ 14 C. C. R. 267 (1894). A tramway, ears, 
scales, and tipple being upon defendant's land, placed there by him 
for use in mining, removing, and marketing limestone, and necessary 
for that purpose, and without which the limestone quarry would not 
be a quarry equipped for the purposes intended, are part and parcel 
of the realty. 

Shellary. Shivers^ 171, 569 (1895). On Nov. 11, 1885, S. leased 
to A. for oil and gas purposes for ^Hhree years, or as much longer 
thereafter as oil or gas might be found in paying quantities," lessee 
to have *Hhe right to remove at any time any and all machinery, 
oil-well supplies, or appurtenances of any kind belonging to the 
lessee.*' The lessee sunk a well in 1887, but, failing to find oil, 
abandoned the lease. In October, 1892, he entered for the purpose 
of taking the casing out of the hole that had been drilled, and remov- 
ing' other fixtures that had been used in drilling the same. He 
was held to be a trespasser, no oil or gas having been found in pay- 
ing quantities. The lease expired on Nov. 11, 1888. The casing, 
the derrick, and other appliances used in drilling and operating are 
trade fixtures, and can be removed by the lessee during tht term of 
the lease. The right to remove fixtures at any time given by the 
lease did not enlarge the right of the lessee. The right to enter at 
any time and to remove machinery at any time was predicated to 
that part of the term that was uncertain, — that is, after three years. 
The lessee had the right at any time to enter and drill additional 
wells if oil or gas was being produced in paying quantities, in which 
case, the tenancy being uncertain in duration, the tenant would have 
a reasonable time for the removal of the fixtures. Four years was 
not a reasonable time. 

lY. The Subject op the Lease and the Bight of the Lesskb 
I TO Minerals not enumerated in his Lease. 

> It seems clear that when one or more minerals are mentioned 
in the lease, the lessee will be. confined to the extraction of these 

' alone, and if in the course of mining he extract others, he will 
be held liable to compensation and an account for their value 
to the lessor, and will be enjoined from further removal of thenu 
This IS true whether the unenumerated minerals escape by reason 
of their own force (as is frequently the case, when, in boring for 
oil, natural gas rises to the surface and is appropriated), or are 
purposely or accidentally removed by the labor of the lessee. 


A contrary rule, however, has been adopted in West Virginia 
as to natural gas.^ 

In determining what is included in a lease, the familiar rules 
of construction are applied. The grant is construed most strongly 
against the grantor. The whole contract must be considered in 
arriving at the meaning of any of its parts. Terms are to be 
understood in their plain, ordinary, and popular sense, unless 
they have acquired a particular technical sense by the known 
usage of trade. They are to be construed with reference to their 
commercial and their scientific import. This rule is of especial 
importance when the question arises whether a specific mineral 
is included in a general designation. 

Terms descriptive of the mineral granted or demised must also 
be construed with reference to their meaning at the time of the 
execution of the lease. They are to be construed to include only 
those in common use and commonly known by such terms at that 
time. Minerals which by subsequent discoveries of science are 
brought within the definition of the terms used are not included, 
if not so known at the date of the grant. If, however, the lease 
shows an intention to contract upon the basis of the possibility of 
such subsequent discoveries, this rule is not applied. 

Though a particular mineral was not known to exist at the 
time of the grant, it will pass thereby if it is fairly included in 
the general terms used. 

oniefin. ^ deed contained a reservation of " all mines and ores of 
metals that are now or may be hereafter found on the said lands, with 
the right ... to mine and carry away the mineral thereon." At the time 
no marble or serpentine was known to exist in the country, iron being 
the only valuable mineral found in that region. The reservation was 
held to cover only '' mines and ores of metals and minerals in common 
use, and commonly known as such,'* and not to include marble, ser- 
pentine, or other building material. 

• Zinc Co. V. FrarMinite Co., 13 Eq. 322 (1861). 

ew enay. ^nder a grant of "all the zinc and other ores, except 
franklinite and iron ores," in a certain tract, the exception was not 

1 The West Virginia case applies 011I7 property in the minerals fertE natura 

to natural gas, and that for the reason thi^ until thej are reduced to possession, yet 

there can be no property therein. Though when reduced to possession by a tenant 

ttie reasoning of this case might extend to it does not f oUow that the property is his. 

petroleum, it could not to the ordinary This is a proper case for the application 

mmerals. of the principle that the tenant's posses- 

Wliile it is tme that there can be no sion is the possession of bis landlord. 


oonfined to franklinite and iron ores where they existed separate and 
distinct, and apart from the zinc. The terms ^^ zinc ores " and 
*^ franklinite and iron ores" were used as descriptioDS of the land 
granted and reserved. The former meant those veins in which other 
zinc ores predominated, the latter those in which franklinite predomi- 
nated, and which were known and designated as franklinite ore. 

Reversed in Court of Errors and Appeals in Zinc Co. v. Franklinite 
Co., 15 Eq. 418 (1862). 

On the grounds: 1. The deed was to be construed most Blix>ngly 
against grantor. 

2. The vein in question was the only one on the premises contain- 
ing zinc, and it must be adjudged zinc ore ; otherwise nothing would 
pass by the deed. 

8. At the date of the deed the vein was called zinc ore. 

Lehigh Zinc Jb Iron Co. v. N. J. Zinc & Iron Co., 55 Law, 350 
(1893). F. conveyed to plaintiff's grantor ^^ all the zinc, copper, lead, 
silver, and gold ores, and also all other metals or ores containing 
metals, except the metal or ore called franklinite and iron ore whea 
it exists separate from the zinc existing, found, or to be found " on cer- 
tain land. F. then conveyed to defendant's grantor ^ ^ all the reserved 
iron ore called franklinite, and all the other reserved ores and metals 
not granted and conveyed to" plaintiff's grantor. Held, ''in the 
plaintiff's title are all veins, strata, or masses of zinc ore which are 
capable of being mined, and all veins, strata, or masses of franklinite 
and iron ores which are not ' separate from the zinc ' and jQt to be 
mined ; in the defendant's title are only those veins, strata, and masses 
of franklinite and iron ores which are ' separate from the zinc ' and 
are fit for mining." 

'* Zinc" in this phrase means veins, strata, or masses of zinc ore in 
quantity and richness worth mining for zinc. 

'' These deeds speak also with reference to the time of their execu- 
tion, and are to be applied to their subject-matter now as they would 
have been applied then. If a specified vein, stratum, or mass of frank- 
linite can be removed without interfering with any zinc ore which in 
quantity or richness was worth mining for zinc, that franklinite or iron 
ore would then, under our view of these deeds, have been excepted from 
the plaintiff's title, and consequently it must be excepted now. No 
advance in the arts and sciences can extend those grants over any por- 
tions of the Mine Hill farm, which they would not at their date have 
been deemed to embrace by then applying to their terms and their sub- 
ject matter correct rules of construction." 

Defendant offered to prove that the vein from which the ore in suit 
was taken was in 1848 usually called franklinite; that although this 
vein was then known to contain certain compounds of zinc mixed with 
the franklinite, yet these were then worthless as zinc ore, and were for 
that reason rejected by plaintiff's grantor, while it held the plaintiff's 
title ; that of all the ores hitherto discovered on the Mine Hill farm, 
the only zinc ore then deemed commercially valuable was the red oxide 
of zinc or red zinc ore, which is scarcely found in the ore worked by 
the defendant ; that this vein was then available only as an iron ore, 
and did not become useful in the arts for the manufacture of zinc until 


1866 ; and that those holding plaintifTs title have always acquiesced in 
the occupation of this mine by those holding defendant's title. This 
was adn^sible. 

w«w ^r% ir Armstrong v. LaJee Champlmn Granite Co.j 147, 495 
«ew xoM. (1395) gy ^^^ ^^ March 30, 1871, there was conveyed 

to plaintiff's grantor " ail the mineral ores " on a tract, " together 
with all needed ways and privileges for mining and raising and remov- 
ing said mineral ores," etc. By deed of May 18, 1871, between the 
same parties, without recital of the first deed, but for the same con- 
sideration, there was conveyed ^^ all the mineral and ores (on the same 
premises), with the right to mine and remove the same ; also, the right 
to sink shafts^ and sufficient surface to erect suitable buildings for 
machinery and other buildings necessary and usual for mining pur- 
poses, and to make explorations for minerals and ores, saving reserva- 
tions to the State of New York." 

Hdd^ the first deed did not pass a deposit of granite. The term 
** minerals " in the second deed, standing alone, would have passed 
such a deposit, but the context indicated that the parties had in view 
only such minerals as are to be got by mining in ^e ordinary sense ; 
that is, by underground and not by open workings. Consequently the 
deposit of granite did not pass by either deed. 

P Ivania Gibson v. Tyson^^^ Watts, 34 (1836). A reserva- 

•nnsy v . ^.^^ ^ ^ ^^^ ^^ conveyance of '* all mineral or mag- 
nesia of any kind, . . . with all bricks and blocks of soapstone as I, 
the said B., may want for my own use," entitles the grantor to chro- 
mate of iron afterwards found. 

Kiev Y. Peterson, 41, 357 (1861). The lessee of land leased for the 
purpose, and with the privilege, of boring salt wells and manufactur- 
ing salt, so long as the contemplated salt well should be carried on, 
under certain provisions for forfeiture, and for a rent of every twelfth 
barrel of salt manufactured, is entitled to petroleum which rises to 
the surface with the salt water. Trover by the lessor for this petro- 
leum will not lie. 

Woodward, J., concurred in the decision but not in the reason. He 
held that trover was an improper action, because the lessee, thougli 
having no right of property, had the right of possession of the petra. 
leum, as necessary, in order to separate the saltwater. But the lessci 
was entitled to compensation and an account for the oiL 

Kitchen v. SmitJiy 101, 452 (1882). Trunkey, J., was of opinio* 
that a lessee under an oil lease might not conduct gas away from 
the land and appropriate it to his own use. *^ I think the dissenting 
opinion by Woodward, J. (Kier v. Peterson, supra), is sustained by 
his reasoning and the authorities therein cited. Gas often escapes in 
large quantities from oil wells, and is of great value for fuel. It is 
eondocted to towns and extensively used in mills and dwelling-houses. 
Its value may greatly exceed th6 value of the oil produced. Thai a 
tenant who has only the right to take oU or salt may condiuU away the gas 
and appropriate it to his own tute, seems to me an arbitrary conclusion. 

Erwin*s Ap,, 20 W. N. C. 278 (1887). A contract was made for 
the exclusive right to all the iron ore on a certain tract of land, with 
the right to wash on said premises such ore as should require washing, 


a certain royalty per ton to be paid for each ton of clean merchantable 
iron ore taken. For some time the refuse from the washing of the ore 
was allowed to accumulate in a dam, being considered of no value. 
Tts utility for the manufacture of paint having been discovered, the 
lessee proposed to remove it, and the lessor filed a bill to restrain such 
removal. The testimony of experts and others was that while con- 
taining iron ore, and so classified by scientists, this refuse matter waa 
commercially known as ochre. 

Heldj that the iron ore intended by the contract was the iron ore at- 
that time mined with a well-known use and application, and that the 
crude ochre in the dam did not pass under the terms of the lease. 

Doster v. FriedensvUle Zinc Co., 140, 147 (1891). A lease was 
granted *'*' for the purpose of searching for minerals and fossil sub* 
stances, and conducting mining and quarrying operations to any extent 
he might deem advisable," the lessee to pay forty cents per ton '^ for 
all zinc ores, sulphurets of zinc, and iron ores," and to have the right 
to separate clean sulphuret ores from the rock, and pay only for the 
clean ore ; and in case any other than zinc ores were removed, they 
were to be paid for at the same rate. In the process of extracting the 
ore, the rock was crushed and washed, and the refuse, which con- 
tained seven and a half per cent of zinc ore, was treated as waste. 
Subsequently it was discovered tt^ajb this mineral was valuable in the 
manufacture of paving blocks. It was held to be the property of the 
lessor, and the lessee having sold it, had to account for its price, and 
was enjoined from further removal of it. The purpose of the lease 
was concerning ores only. 

Moody V. Alexander, 145, 671 (1892). A vendor contracted in 
writing to convey to the vendee a certain tract of land, reserving " all 
oil and gas in or under the said land, with free mining privileges of all 
kinds, right of way for roads of all kinds, also free ingress and egress 
over, into, upon, and under said lands," compensation to be made for 
any land used in, and all damages caused by, his '^ mining operations." 
By the terms of the contract the only minerals excepted out of the 
grant were oil and gas. The phrase " mining privileges " was refer- 
able to them, applying to the processes and means of obtaining oil and 
gas, and did not extend the exception to coal, iron, and ot£er sub- 
stances not named, especially in view of the rule that a grant is to be 
construed most strongly against the grantor. 

Lance v. L. & W. Coal Co., 163, 84 (1894). A lease of all the 
anthracite coal under a certain tract provided that the lessee should 
pay a royalty on all coal mined that would pass over a five-eighths of 
an inch mesh, and that the lessor should have all the culm or refuse 
coal from the mines, and should have the right to enter upon the 
premises at any time and remove the same, but that the lessees might 
use so much of the culm as might be necessary for any purpose about 
their works. 

At the time the lease was made no general market existed for coal 
that would not pass over a five-eighths mesh. Some of this subse- 
quently becoming marketable, it was sold by the lessee. Hdd, they 
were not bound to account therefor to the lessor. He was not entitled 
to all the coal which passed through a screen with a five-eighths inch 


mesh, bat only to refuse coal; '^ that is to say, to coal refused by the 
lessee because it was unsalable, and which of necessity, to make room 
for the operation of the works, was removed and thrown into a pile. 
The lease indnded all the coal on the land, and the provision as to 
sizes on which no royalty was to be paid was a stipulation in favor of 
the lessee, not a reservation of anything of value by the lessor/' 

The piles of refuse were regarded as of no value, but the belief 
existed that in the future, means might be devised to utilize the large 
quantities of good coal that they contained. The lease was negotiated 
upon this basis. 

- Peame v. Coal Creek M. & M. Co., 90, 619 (1891). A 

enneasee. ^^^ describing a tract of land, and conveying " ^ee- 
fourthH of the land and one-half the stone coal of the whole tracts . • • 
except the minerals of all the precious kinds,, passes one-half the stone 
ooal and three-fourths of all other metals not of the '^ precious kind." 
W t VixdniA PetroUum Co, v. TranaportaUon Co., 28, 210 

as ixgima. ^jgggj^ Natural gas is incapable of being absolute 
property, and is the subject of qualified property only, belonging to 
him who first appropriates it. A landlord leased to his tenant certain 
premises for the purpose of taking oil therefrom at a fixed royalty ;. 
the tenant opened a well which produced both oil and gas, the former 
in small quantities pumped from the well and for which the royalty 
was paid, and the latter in lai^e quantities issuing by its own force 
from the well, and which was separated by the tenant and by means of 
pipes conducted beyond tiie leased premises, and sold or appropriated 
by the tenant to his own use. In an action brought by the landlord for 
an account of the value of the gas the tenant was held not accountable. 

If tlie tenant had attempted to use the land to produce gas alone 
under the terms of the lease, his term would have been forfeited ; or . 
if the gas had not escaped of its own force, he would not have been 
permitted to pump it without the lessor's consent. 

The appropriation of natural gas would not enter into the estimate 
of damages in an action of trespass. 





L Aisignment of the Lease. 

A. Mortgage of Leasehold. 
n. Termination of the Lease. 
A. By Expiration of Term. 

B. By Exhaustion of the Minerals. 

C. By Eyiction. 

D. By Forfeiture. 

£. Bj Abandonment and Surrender. 

I. Assignment of the Lease. 

The right of a lessee of minerals to assign in whole or in 
part his lease, or the rights and premises thereof, depends upon 
the nature of his estate. If his estate is an estate in fee in the 
minerals, he, of course, has all the powers of alienation and sub- 
division possessed by any other owner of a fee. If his lease is a 
lease of the land with appurtenant mining rights, he has likewise 
full powers of assignment and division. If, however, his estate i8 
an incorporeal hereditament, he may assign it, but not divide it, 
unless the power is expressly conferred in the grant. If it is a 
mere license, the right is personal and incapable of assignment. 
This subject has already been incidentally referred to, and the 
authorities will be found under the different subdivisions of 
Chapter II. As between the assignee of a lease and the lessor 
the former acquires all the rights of his assiffnor as they existed at 
the time of the assignment^ unless there is something in the lease 
to the contrary. So also he is bound by all the covenants of the 
lease^ and hy all the obligations thereunder to which the lessee was 
subject at the date of assignment. All covenants which by their 
. terms or nature are continuous, or which, in other words, run with 
the land, are binding upon him during his ownership of the lease ; 
but covenants by the lessee to do anything at a time prior to the 
date of the assignment do not bind him. He is not liable, there* 
fore, for the lessee's breach thereof. 

Owing to the privity of contract existing between the lessor 
and his lessee, the latter is not released from the covenants in his 
lease by reason of the subsequent assignment by him to a third 


pereon. Between the latter and the lessor there exists privity of 
estate only. Thei*efore the assignee of a lease is liable only for 
the covenants which are broken while this privity of estate exists, 
and is not liable for those which were broken before such relation 
came into existence, or those which may be broken after its ter* 
mination. Each successive assignee is liable only for the cove- 
nants broken while the title is held by him, owing to the absence 
of contract relations between him and the lessor. The rights of 
the assignee as between himself and his assignor are governed by 
the terms of the assignment 

United Bteta ^^ ^^ Huddell^ 16 Fed. 373 (1883). A purchaser 

** at sheriff's sale of the unexpired term of a coal lease 
iake$ the lessee* 8 plaee under the lease^ standing upon no higher plane 
in any respect, and, like the tenant, is liable for all taxes on improve- 
ments placed by himself on the land. 

nUnois Consolidated Coal Co. v. Peers^ 160, 344 (1894). If it 

be conceded that the assignee of the lease is discharged 
from liability for subsequent breaches by his assignment of the 
lease, yet his transfer will not have the effect of discharging hina for 
breaches of covenant already committed when there was a privity of 
estate between him and the lessor. 

Peers v. Consolidated C. Go. of St. Louis^ 59 Ap. 695 (1895). 
The lessee of the sole and exclusive right of mining coal on certain 
lands conveyed by deed all his interest in the premises, together 
with all rights, etc., under the lease to the defendant, who took the 
same subject to the agreements of the lease. Held^ that defendant 
was liable to pay rent according to the terms of the lease, and was 
not relieved therefrom by an assignment to another. 
jU^^^^^j^ Boydston v. Meacham^ 28 Ap. 494 (1888). The peti- 
tion alleged a lease of coal lands by plaintiff to C, by 
which C. for himself and assigns agreed to pay one cent a bushel for 
all coal taken; a sale of a half interest in his lease by C. to defend- 
ant; the mining by defendant in connection with C. as partner; the 
amount of coal taken out by them; defendant's promise to pay, and 
the credits thereon* Held^ this stated a cause of action. 
Hevad Waters v. Stevenson^ 13, 157 (1878). This was trespass 

for ore extracted from plaintiff's mine by defendant. 

W., the plaintiff, had leased the mine to A. on royalty. A. subse- 
qaently assigned the lease to W., and also his claim against S. 
HM^ W. stood in the same relation to S. as his assignor A., and 
the latter was not entitled to deduct the amount of the royalty from 
the damages for the ore taken. 

Pennsylvania ^«^*^ v. Mllliken, 8, 111 (1848). By the lease of 
^ ' a mine the lessees covenanted to pay forty cents per 

load for the ore taken, but were at liberty to pay instead, at their 
election, to be made at the expiration of the first year, a certain 
amount per annum ; but, in case they chose to pay for the ore by the 


load, they were to take and pay for at least eight hundred loads. Not 
having elected to pay an annual sum, the covenant to take and pay 
for eight hundred loads became positive, absolute, and indefeasible. 

The lessees having assigned to another, with whom the lessor made 
a new agreement: HM^ not to release the original lessees. 

The tenant is haiind by a covenant to pay the rent, though he oMtgn 
his lease with the landlord's consent^ and though the latter accept the • 
assignee for his tenant, and receive rent from him. 

Lyketis Valley Co. v. Dock^ 62, 232 (1869). The lessee of ooal 
mines made an assignment for the benefit of creditors, after which 
the lessor re-entered. The assignee was entitled to coal already mined 
lying in the mines, provided it could be removed without injury to 
the mine, and he could maintain trover therefor. 

The measure of damages was the value of the ooal lying in the 

The assignee had a right to use a railroad which was laid in the 
mine for the purpose of removing the coal, provided he did it so as 
not to interrupt, materially, the business of the owners. 

Goddard's Ap.^ 1 Walker, 97 (1870). Lease of colliery provided 
that if lessees did not mine forty thousand tons in any one year 
between January 1 and December 31, they should nevertheless pay 
rent as if they had mined that amount. 

On April 1, lessees, having mined no coal, sublet by lease, whereby 
the sub-tenants bound themselves to perform the covenants of the 
original lease. Held^ they were bound to pay rent as if they mined 
forty thousand tons between April 1 and December 31. 

Bradford Oil Co. v. Blair^ 113, 83 (1886). A. leased his farm 
to B. to explore for and produce oil, at a royalty of one-eighth the 
production. The lease contained the following covenant: '^ To con- 
tinue, with due diligence and without delay, to prosecute the busi- 
ness to success or abandonment; and if successful, to prosecute the 
same without interruption for the common benefit of the parties." B. 
assigned an interest in said lease to C. and D., and they, with B., 
assigned it to E. Two wells were bored on the farm, both of which 
were producing wells. E. refused to bore any other wells. In an 
action of covenant brought by A. against E. for breach of the cove* 
nant above quoted, held^ that the said covenant was not the personal 
covenant of B., btU a covenant that ran with the land^ and therefore 
bound E, 

Washington N. G. Co. v. Johnson^ 123, 576 (1889). Owing to 
his privity of contract with the lessor, a lessee's liability upon his 
covenants in an oil and gas lease continues after his assignment of 
the lease; but an assignee of the lease being in privity of estate only 
with the lessor, is liable only upon covenants which are broken, while 
his privity of estate exists. 

Each successive assignee would be liable upon covenants which are 
broken, while the title is held by him ; but, because of the absence of 
any contract relations with the lessor, he would not be liable upon 
covenants broken before he obtained title or maturing after he had 
parted with it. An assignee of an oil and gas lease is not liable to 
the lessor upon a covenant of the lessee to drill a well upon the 


demued premises, when the time for performance had elapsed before 
the assignee acquired title under the asaignment. 

'* The case of the Bradford Oil Co, v. Blairy 113 Pa. 83, has been 
cited as sustaining a contrary doctrine, but an examination of it will 
show that it is clearly distinguishable from this case. 

'^ The covenant which it was sought to enforce in that case was not 
for the completion of successive wells at successive dates, but it was 
for the commencement of the work of developing Blair's farm at a 
time certain, and to ' continue with due diligence and without delay 
to prosecute the business to success or abandonment, and, if success- 
ful, to prosecute the same without interruption/ Two wells were 
completed, and were successful oil wells. The assignee of the lease 
owned adjoining lands, upon which it was operating, and it stopped 
work on the Blair farm. The action rested on the breach of the cov- 
enant to prosecute the business of producing oil from the land of the 
lessor with due diligence and ^ without interruption.* The obligation 
of a covenant to prosecute the business of developing the land of the 
lessor without delay and without interruption is a continuing one. 
This breach for which the Bradford Oil Co. was held liable was not 
that of some previous holder of the title, but its owner." ^ 

Smith V. Munhallj 139, 253 (1891). Plaintiff, lessee of certain 
tracts for purpose of operating for oil or gas, assigned to defendant 
the leases, in consideration of which it was agreed if the defendant 
or his assignees ^^ operate under the said leaseholds, that on each of 
the leases he so operates, and if the oil is found in paying quantities, 
the said M. or assignees agree to pay S." $100 for the leasehold 
opon which a paying well is found. Defendant surrendered the leases 
to the owners of the laud and took new leases, containing the same 
provisions, which he assigned to innocent parties. This showed no 
cause of action for breach of contract. Plaintiff's claim for payment 
could be enforced only when oil was found on the land in paying 
quantities. In that case, by whomsoever found, recovery could be 
had against defendant. 

Fennell v. Guffey, 139, 341 (1891). An oil lease provided that 
lessor should complete one well within six months, and upon failure 
to do so should pay the lessor ^^for such the sum of $231 per annukn, 
within three months after the time for completing the well," with a 
provision that a failure to complete the well or make the payment 
within such time should avoid the lease. 

The lessee having assigned after the expiration of the six months, 
but within three months thereafter, the assignee was liable. The 
covenant to pay $231 per annum was not for breach of the contract to 
complete the well within six months, but was for rent which had not 
accrued until after the assignment, and ran with the land. 

WaU V. Dininny^ 141, 22 (1891). Plaintiffs, owners of coal land, 
executed a mining lease, perpetual till exhaustion, the lessees to pay 
thirty cents per ton royalty on coal mined. Subsequently the plain- 
tiffs, the lessees, and the defendants made a parol agreement, by 
which the defendants were to enter and mine coal and to pay the 
plaintiffs the same royalty. 

1 See al80 Gots v. Fire Brick Co., 4 Superior Ct. 167 (1897). 


The defendants, as found from the evidence, having mined coal 
from the lands of the plaintiffs, under the agreement made therefor 
with the consent of the lessees, they were liable for the royalty they 
had agreed to pay ; and the plaintiffs were entitled to briqg suit to 
recover the same directly against the defendants. 

Guffey V. Clever^ 146, 548 (1892). A lease of land for oil and gas 
production, with no clause authorizing an assignment thereof, pro- 
vided that if oil or gas were found the lessee should have the refusal 
for three months of a lease of an adjoining tract of the lessor, on 
terms ^Hhat may be equal to the best terms offered by any other 
person or persons therefor." 

The lease having been subsequently assigned, the lessor entered 
into a written contract with the assignee, providing for ceitain ezten- 
sions of the time of performance and for the payment of increased 
royalties, and that the original lease '^ shall remain in full force in 
all particulars in which the same is not hereby modified/' 

The position that the assignment of the first lease did not carry 
with it the option for the second lease was untenable, in view of the 
new agreement between the lessor and the assignee, especially pro* 
viding for the continuance of the unmodified covenants of the first 
lease; and the assignee was entitled to the new lease on the terms of 
the best bona fide offer made. 

Williams v. Shorty 155, 480 (1893). Covenant in an oil lease tc 
pay royalty or a share of the product runs with the land, and is bind* 
ing upon the assignee of the lease who has received his share of the 
product of the wells. 

Aderhold v. OU Well Supply Co.j 158, 401 (1898). A purchaser 
of an oil lease at sheriff's sale takes subject to all the covenants and 
conditions contained in the lease, among others to a covenant to 
complete a well within six months, and, failing in this, to pay a 
rental of 9500 per year until such well is completed. 

Comegys v. Bussellj 175, 166 (1896). R. made a coal lease to D., 
by which it was provided that royalties should be paid every six 
months, and if the amount due at the end of any half year remained 
unpaid for twelve months thereafter, the lease was thereby forfeited, 
and the lessor was authorized to ^^enter and take possession without 
recourse to law." The lease was executed in 1887. On July l,1891y 
D. gave an option to plaintiffs to purchase his lease, one of the con* 
ditions being that they should test the character of the veins upon 
the tract by boring down through them. After the boring was done, 
plaintiffs in April, 1892, notified D. that they accepted his option. 
In July, 1893, plaintiffs called upon the lessor for the purpose of 
paying any royalties due. The lessor said there was nothing due; 
but if there were, he would not take it from the plaintiffs. In Sep* 
tember, 1893, the lessor re-entered for the non-payment of royalties 
within twelve months after they had fallen due. 

There was evidence that the lessor knew the plaintiffs were boring 
upon the land, and that he pointed out the lines of the tract to the 
plaintiffs while the boring was going on. Held (1), that the plain- 
tiffs took D.'s lease subject to D.'s covenants, and they were bound 
to take notice of them; (2) that the fact that the lessor knew that the 


plaintiffs were n^otiating with D. gave them no rights as against 

the lessor, except such as D. himself had, and imposed no duties on 

the lessors toward them, except such as he was under towards his 

lessee under the terms of the lease; (3) that the plaintiffs knew and 

were bound to take notice of the fact that mining was going on under 

the lease, and that royalties were falling due each half year; (4) that 

the plaintiffs were bound to know whether the royalties were being 

paid!, and what was the state of the accounts, the responsibility for 

which they were about to assume; (5) that as they had not paid or 

offered to pay the royalties they had no higher standing thaq their 

vendor so far as their contract rights were concerned; (6) that the 

lessor was not estopped as against the plaintiffs by the fact that he 

knew the boring was going on, or by what he said in July, 1893. 

West Vlniiila. MeOuire v. Wright, 18, 507 (1881). A sale of a 

^'^^ lease does not carry with it oil that had theretofore 

been pumped from a well on the leased land. 

Wisconsin. Tipping v. BMnns, 64, 546 (1885). A voluntary 

association, of which defendant was a member, having 
a mining lease of a certain tract of land, obtained a similar lease of 
an adjoining tract, the property of the plaintiff, in order to extend a 
level or adit upon a body of lead ore, which adit they were running on 
the former tract. The defendant subsequently became owner of the 
former tract, and the association surrendered to him its right therein; 
but the lease of tiie plaintiff's lot was not assigned to him. Held, 
that the defendant acquired no right under said lease to extend the 
level upon the plaintiff's lot, and to dig and to remove ore therefrom. 

A. Mortgage of Leasehold. 

As a general thing the mineral estate is subject to the same 
rules as to mortgages as any other real estate. 

In Pennsylvania, however, the mortgaging of leasehold in- 
terests has been made the subject of particular statutes.^ 

Pennsylvania Sturtevanes Ap., 34, 149 (1859). Under the eighth 
^ ' section of the act of April 27, 1855, where a mortgage 

is executed of a leasehold estate, it is necessary, in order to give it 
priority as against an execution creditor of the mortgagor, that the 
lease should be recorded with the mortgage. 

Ladley v. CreigJUon, 70, 490 (1872). Under act of April 27, 1855, 
sec. 8, recording such mortgage with a copy of lease and referring to 
the lease recorded with a former mortgage, held^ to be a substantial 
compliance with the act. 

Hosie V. Gfray, 71, 198 (1872). Where a coal-lease mortgage pro- 
vides for collection by scire facias, that writ may issue though there 
was no provision for such a remedy in the act of April 5, 1853, au- 
Uiorizmg mortgages of coal leases in Schuylkill county. 

> Acts of April 5, 1853, P. L. 295; 1861, P. L. 185. Se« also page 127," FU- 
April 27, 1855, P. L. 869; March 22, tares." 


The act of April 3, 1868, gave the same remedies on coal-lease 
mortgages as on mortgages of real estate, and applied to actions pre- 
viously begun. 

am V. Weston, 110, 305 (1885). The lien of a leasehold mortgage 
duly acknowledged and recorded in accordance with the act of April 
27f 1855, is not divested by a sheriff's sale upon a judgment subse- 
quently recovered against the mortgagor. Such a mortgage is regu- 
lated by the same rules as govern the mortgage of a freehold interest. 

Gill V. Weston, 110, 312 (1885). The act of April 25, 1855, pro- 
vides for the mortgaging of a leasehold of ^^ any colliery, mining lands, 
manufactory, or other premises." Held, .that the act applied to and 
authorized a mortgage of a leasehold in oil land although the act waa 
passed before petroleum was discovered. 

Petroleum is a mineral substance obtained from the earth by a 
process of mining, and lands from which it is obtained may with 
propriety be called mining lands. 

First Nat. Bank v. Slieafer, 149, 236 (1892). A coal lease mort- 
gage in Schuylkill county under the acts of April 5, 1853, and March 
22, 1861, is not discharged by a sheriff's sale under executions on 
judgments on claims for labor subsequently performed and other exe- 
cutions on ordinary claims, on the proceeds of which executions, these 
and other similar labor claims not reduced to judgment, were a pre- 
ferred lien. 

Baker v. Atherton, 15 C. C. R. 471 (1894). The word "fixture*' 
in the act of April 27, 1855, and in a mortgage made under that act, 
is not to be construed in a strict and narrow sense, but in a. compre- 
hensive way, and will include mine cars and all such machinery and 
appliances as are essential to the operation of the colliery, but not 
prop timber. 

West Virginia. C7ii7cte v. Hurd, 32, 66 (1889). See p. 122. . 

II. Termination of the Lease. 
A. By Expiration of Term. 

This is, of course, a matter which is usually determined by the 
terms of the instrument itself. When a lease is by parol, and 
there is a dispute as to the duration of the term, it becomes a 
question of fact for the jury. With regard to notices to quitj the 
same rules, generally speaking, obtain as in other leases.^ 

The lessor may be estopped from setting up the termination of 
a lease where he has induced the lessee to make expenditures 
thereafter on the faith of its continuance. 

jyj^ ^ Coal Co. y. Schaefer^ 31 Ap. 364 (1889). By lease, all the 
^ * coal in certain described lands was demised, and three acres 
of surface for erection of works, buildings, etc. A notice to quit, 
describing all the surface lands and the three acres by metes and 
bounds, was sufficient 

1 New Mexico, Act 26, 1891, p. 132. 


_ Jenkins v. Clyde C. Co., 82» 618 (1891). A lease of coal 

^*' lands provided that the same might be tei:miDated upon thirty 
days' notice, if it should be found at any time impracticable for the 
lessee to profitably mine the same. There being no other provision in 
the lease for its termination, a notice by the lessee that he surrendered 
his rights '^as provided, for in the lease " is sufficient. 

Eaton V. Wilcox, 42 Hun, 61 (1886). The provision 
that the lessee should have and hold the premises for the 
term of '^ twelve years from this date, and as long as oil is found in pay- 
ing quantities," does not limit the term to a period during which oil in 
paying quantities is found. The term fixed is for twelve years at least, 
and for as much longer as oil is found in paying quantities. 
P ania ^oore v. Miller, S, 272 (1848). Where a lease is by 

ennsy ▼ . ^^^y, and there is^ a dispute as to the duration of the 
term, the question is one of fact for the jury. 

Riddle v. Mellon, 147, 30 (1892). Plaintiff made a lease to 6. for 
oil and gas purposes ^^for, during, and until the full term of one year 
next ensuing • • • and as long as gas or oil is found in paying quanti- 
ties or rental is paid." The lessee drilled a well within the year and 
found oil, but failed to produce it in paying quantities. He then 
assigned the lease to defendant, to whom, after the expiration of the 
year, plaintiff made the request that he drill the well deeper. This the 
defendant proceeded to do, and the plaintiff recognized his rights 
under the lease as still in force. The defendant failing to find oil in 
paying quantities in the well abandoned it. He then proceeded to 
drill another well, and plaintiff brought trespass against him. Oil in 
paying quantities was found in this second well. Plaintik having, 
after the expiration of the year, encouraged and allowed defendant to 
expend money and labor on the premises, on the basis of the continu- 
ance of the lease, was estopped from asserting that it was at an end. 

NesbU V. Godfrey, 155, 251 (1893). On June 12, 1890, plaintiff 
executed and deliver^ an oil lease to defendants which was to con- 
tinue ^^ during and until the full term of twenty-one years next ensu- 
ing the day and year above written." The rent was seventy-five 
dollars per year in advance. The lessees had power to terminate the 
lease at any time when they found it would not pay them to continue 
it. They paid seventy-five dollars on June 12, 1890, and on June 12, 
1891, notified plaintiff that they elected to terminate the lease. Held, 
that on June 12, 1891, defendants had entered upon their second year, 
and were liable for the rent of that year. 

Western Penn. Oaa Co. v. George, 161, 47 (1894). An oil lease, 
*^ for the purpose of drilling and operating for oil and gas," provided 
that the lessee should hold the leased premises during the term of two 
years from the date thereof, and as much longer as oil and gas were 
found in paying quantities or the rental paid thereon. The lessor was 
to receive one-eighth of the oil produced, and five hundred dollars per 
annum for each Veil from which gas should be obtained in paying 
quantities, and so long as it should be sold therefrom. The lease 
further provided that the lessee should commence a well within thirty 
days and complete it within ninety days, ^^or in default thereof pay 
to the party of the first part for further delay an annual rental of 


sixty dollars, payable quarterly in advance on the premises from the 
time above specified for completing a well, until such well shall be 
completed. A failure to complete such well or pay said rental witiiiin 
the time specified, or within ten days thereafter, shall render this lease 
null -and void.'' ^' It shall be optional with the lessee at any time 
either to drill the said weU, to pay the said rental, or to forfeit and 
surrender this lease." Held^ that the failure of the lessee to complete 
a well within the term of two years enabled the lessor to terminate the 
lease on the expiration of it, and that the lessee could not indefinitely 
continue the lease by payment of sixty dollars per annum after the 
expiration of the two years. 

BcUfour V. BtisseUy 167, 287 (1895). An oil and gas lease was 
for three years, or while oil or gas was produced in paying quantities. 
The lease excepted '^ four acres around the buildings, upon which no 
wells are to be drilled without the written consent of both parties 
hereto, the boundaries of which are to be designated and fixed by the 
party of the first part." The only producing wells under this lease 
were two, drilled within the limits of the reservation, which continued 
to produce oil in paying quantities after the expiration of the three 
years. The lessor consented in writing to the drilling of one of these, 
acquiesced in the drilling of the other, and received his share of the 
oil. The lease did not terminate at the end of three years. 

Double V. Union H. & L. Co., 172, 888 (1896). A tract of land 
was leased for the purpose of operating for oil and gas ^^ for the term 
and period of two years from the date hereof, and as much longer as 
oil and gas is found in payiug quantities thereon • . . and should 
any well produce gas in sufScient quantities to Justify marketing, 
the lessor shall be paid at the rate of $200 per year for such 
well, so long as the gas therefrom is sold." Gas was found in such 
quantities, and the lessor remained in possession after the expiration 
of two years. Held^ he could not terminate the lease by merely ceas- 
ing to use the gas. In order to do so, he must also have notified the 
lessor that he had ceased to use the oil, and terminated and surren- 
dered the lease. 

South Carolina ^cBee v. Loftis, 1 Strob. Eq. 90 (1845). The 

grantee of a right of mining who by the terms of the 
deed is bound to surrender the right at the end of a year, if he finds it 
unprofitable, and who by the end of the year indicates no intention to 
do so, cannot have his rights limited to one vear. 
_. Sheldon v. Davey, 42, 637 (l870). J. having a lease 

ermon . ^^ ^^^ occupying a certain portion of S.'s slate quarry for 
a term of years, paying as rent therefor a stipulated price per square 
for all the slate quarried and manufactured therefrom, without obtain- 
ing S.'s consent occupied a certain other portion of the quarry adjacent 
to the leased premises for several years, and quarried and manufactured 
slate therefrom, paying S. therefor the same price per square as stip- 
ulated in the lease, and paid for that taken from t^ leased premises. 
Meld, that such use and occupation of the portion of the quarry out- 
side of the leased premises, under the circumstances of this case, did 
not constitute a tenancy from year to year, and that the only interest 
J. acquired outside of the leased premises was the right to take out 


the slate from a section of the quarry which, with the knowledge and 
aoqniescence of the owner, he had been to the expense of oncovering, 
and that he was not entitled as a matter of right to six months' notice 
to quit, bat to a reasonable time to quarry and manufacture the slate 
he had so uncovered.^ 

B. By ExhauBtion of the Minerals. f 

The exhaustion of the minerals terminates the mineral estate. 
If the interest created is an incorporeal right or a license, what- 
ever the limitation as to time contained in the instrument or con- 
tract, the right ceases when the subject thereof ceases to exist. 

Where the interest is a fee in the minerals, their exhaustion is 
equivalent to the entire removal of the land which is the subject 
of the lessee's ownership ; nothing remains but the space occupied 
by the minerals, which, in the absence of provision to the con- 
trary in the lease, cannot be put to any use by the lessee without 
imposing a servitude upon the land of the surface owner. Of 
course the lease may, in a manner, be kept alive by covenants 
therein providing for the use of the chambers, shafts, etc., for the 
removal of minerals from other lands. 

This subject will be treated of in Chap. XIX., Div. II., " Right 
of Way." 

The termination of rights under a lease by the exhaustion of 
the minerals does not necessarily terminate the lessee's obligation 
to pay rent.^ 

lUinoia ^^^' ^' German Coal Co.y 139, 21 (1891). Where the 
* owner of land conveyed a described piece thereof, and *' also 
the privilege of mining for coal under " an adjoining tract of one acre, 
the grantee has no farther rights under this latter clause after all the 
coal is mined from the one-acre tract. 

He has then no right to pass over it from the first piece of land to 
another, upon which there is a mine. 

PennsTlvania ^<*rA; Co. v. CummingSy 7 Leg. Gaz. 149 (1875). 
^ * When land is conveyed with the reservation of the 

coal and other minerals and the right to remove the same, so soon as 
all the coal and other minerals are removed the surface owner resumes 
possession of the whole soil beneath the top surface of his lot to the 
lowest depth, and can prevent the use of any subjacent part for work- 
ing the minerals on an adjoining lot 

See LiUibridge v. Lackaioanna Coal Co.j 143 Pa. 293; Stewart v. 
North Western C. & L Co., 147 Pa. 612. 

^ On notice to quit hi caaes of mining licenses in Iowa and Missoori, see cases under 
Chap. EL, Diy. IV. 

* See also Chap. III., Diy. L 



C. By Eviction^ 

Technically an eviction does not terminate a lease, but only 
discharges the lessee from further payment of rent. But in the 
case of mines an eviction practically puts an end to the lessee's 

An eviction takes place where by an act of the lessor the 
lessee is expelled, or his possession so disturbed as to compel 
abandonment of the premises, or he is deprived of the beneficial 
enjoyment of the premises, or they are rendered unfit for the pur- 
poses for which they were leased. Any act, therefore, which pre- 
vents the lessee from taking the minerals, which under his lease 
he would be entitled to take, is an eviction. 

Also an invasion of the premises by a third person with the 
consent or by the authority of the lessor, or his neglect to protect 
the lessee from encroachment which it is his duty to prevent, is 
an eviction. So is the expulsion by a third person under a judg- 
faient for the recovery of the premises based upon a paramount 
title. A mere action of ejectment, however, although followed by 
a writ of estrepement is not such. 

-j^ Walker v. Tucker, 70, 527 (1878). Where an agree- 

^ ' ment referring to certain lands, reciting that the party of the 
first part desired to lease to the party of the second part the right of 
mining coal thereon, demised ^^the farming lands described and men- 
tioned," ^^ together with the right to mine, dig, extract, and carry away 
coal .... together with the enjoyment and occupation of so much of 
the surface as might be necessary to carry on the mining for coal:" 
Held, if the grantor prevented the grantee from using the farming land 
it would amount to an eviction. ^^If the tenant loses the benefit of 
the enjoyment of any portion of the demised premises by the act of the 
landlord the rent is thereby siLspended. The term ' eviction ' is now 
popularly applied to every class of expulsion or amotion." ^^ If those 
acts amount to a clear indication of intention on the landlord's part 
that the tenant shall no longer continue to hold the premises, they 
would constitute an eviction." 

BCohiftan -P«*»^^ v. EeUs, 67, 657 (1888). Entry by lessors, 
^*"* taking and retaining sufficient possession to prevent mining 
by lessees or their assignees of the mine, is an eviction, and relieves 
the lessees or their assignees from payment of rent. 

Pennsylvania ^^ ^- ^^^^^^^ 4^' ^^^ (1862). Where the rent 

^ * of a coal bank is for the first year the putting of the 

bank in good order, and thereafter a fixed sum per bushel mined, and 
by the terms of the lease no one else was to have the privilege of 
taking coal, it is not an eviction for the lessor to enter and take coal 
from the bank without interrupting the actual operations of the lessee. 


Bot such action was a breach of covenant entitling the lessee to set off 
damages in an action for rent. 

*' Eviction snch as will suspend rent is more than a mere trespass 
by the lessor, or a breach in any other form of the implied covenant 
for qniet enjoyment : it is an actual ezpolsion of the lessee out of aU 
or «>me part of the demised premises." ^^The rent was not the con- 
sideration of the possession, or of the timber leave or of the building 
privileges, or of all these together ; but was the equivalent, the reddi' 
tuSj for the bushels of coal actually taken. Had Tiley been pre- 
vented from taking coals, that would have been an eviction, and 
would have suspended the rent, of course. What he was to pay was 
to be measured by what he should take in the bushel. No cooZ, no 
wUy says the lease in substance. The possession of the land and the 
privileges mentioned were incidental to the coal right, but no rent was 
fixed for them." 

SchuyUciU Jb Dauphin Improvement A It. Co. v. Schmx>de^ 57, 271 
(1868). An action of ejectment by a stranger, followed by a writ of 
estrepement, is not a breach of the covenant of quiet possession. It 
consequently does not furnish ground for an injunction against lessor 
from re-entering for condition broken. 

^* Every lease implies a covenant for quiet enjoyment. But it ex- 
tends only to the possession, and its breach, like that for the warranty 
for title, arises only from eviction by means of title.. It does not pro- 
tect against the entry and ouster of a tortfeasor. Even the entry of 
the State, by virtue of her rights of eminent domain, incurs no breach 
of the covenant." 

^\ The tenant has a rigJU to caU his landlord irUo his defence^ and if 
eoiction follows as the result 6f a failure to defend him^ he can then 
refuse payment of the rent^ and fall back upon his covenant for quiei 
ei^oyment to recover his dam>ages" 

D. By Forfeiture. 

Forfeiture here means the loss of the estate, occasioned by 
a violation of some of the covenants or conditions of the lease 
or contract. The law of forfeiture applicable to mining leases 
18 the same as that applicable to other leases, but the subject is of 
such importance in this connection as to call for special treat- 
ment here. The covenants and conditions upon whose breach 
these forfeitures are almost always predicated are either to pay 
rent or royalty, or to work or test the mine either generally or in 
some particular way. 

A forfeiture may occur upon the breach of either a condition 
sabsequent or a covenant. In the former case it results from the 
failure to fulfil the condition. In the latter it occurs only where 
there is in terms a provision that the lease shall be forfeited or 


become null and void upon such breach. Without such a ptovi- 
sion a mere breach of covenieint will not avoid the lease.^ 

In North Carolina a forfeiture is enforced for breach of the 
implied obligation of the lessee to work the mines, and in King v. 
Edwards^ 82 111. Ap. 558, the possibility of doing the same thing 
Was recognized. This is contrary to all authority. The land* 
lord's right to resume possession upon this ground should be 
based upon the lessee's abandonment, the relinquishment of his 
rights acquiesced in by the landlord. 

The cases of Petroleum Co. v. Coal Co.y 89 Tenn. 881, and 
Wicker%ham v. Zinc Co.j 18 Kan. 481, would also have been better 
decided upon this ground than by twisting covenants into condi- 
tions in disregard of the rule that a provision is to be construed 
as a covenant rather than as the condition. On the other hand, 
ilrhere a lease provides that the breach of covenant shall be con- 
sidered an abandonment, it being perfectly clear that a forfeiture 
is intended, the lease will be so construed. 

Forfeiture is not a favorite of the law, and in order to permit a 
declaration thereof for breach of covenant, the right thereto must 
be distinctly reserved, the proof of the happening of the event 
tipon which it is to be exercised must be clear, the right must be 
exercised promptly, and in equity the forfeiture must not be un- 
conscionable. Where the right is disputed, equity will interfere 
by preliminary injunction to preserve the possession of the lessee 
and prevent the interference of the lessor. Likewise, upon the 
other hand, nothing less than a clear expression of intention that 
a provision shall be such, will make it a condition upon which 
the continuance of an estate depends. And where causes of for- 
feiture are expressed, other causes are not to be inferred. 

Though it is frequently said that under such provisions the 
breach of a covenant renders the lease void, the opinion which 
now. prevails is, that it is rendered voidable at the option of the 
lessor. The covenants were made for his benefit, and he may 
upon their breach exercise the right to declare the contract void, 
br, affirming its existence, bring an action thereon. It follows 
that the lessee cannot set up the forfeiture, although the lessor 
may have had ample ground for doing so, because he will not be 
allowed in this way to take advantage of his own wrong. If the 

1 In MisHonri a fopfeitnre of a statutory Kev. Stat. 1889, sees. 7034-7. See above, 
license for failure to work is provided bj Chap. II., Div. IV. 


lessor therefore does not avail himself' of the opportunity tb ter* 
minate the lease it will continue. 

The most common provisions of this kind are those in oil and 
gas leases, which is due to the fact of the uncertainty surround- 
ing operations of this sort, and to the importance of delay in 
commencing operations, owing to the difference in the nature of 
these and of fixed minerals. These leases generally contain pro- 
visions for forfeiture in case of failure by the lessee to commence 
operations or complete wells within a fixed time, or simply to 
prosecute operations, which is held to mean with reasonable 
diligence or within a reasonable time. In case of such a failure, 
the lessor is at liberty to treat the lease as void without re-entry 
or notice to the tenant On the other hand, he has a right to 
treat it as valid and continuing, and may likewise without notice 
bring an action for breach of covenant, or for penalty under the 
provisions of the lease, and the lessee cannot set up the forfeit 
ture as a defence. It is not admissible to show that a contrary 
construction has been put upon such provisions by both lessors 
and lessees, such construction being merely a misunderstanding, 
more or less general, of the law. The right of forfeiture is not 
abridged by the addition of a covenant to pay fixed damages for 
delay. But the provision for forfeiture may be dependent upon 
failure to prosecute work or upon failure to pay rent as an alter- 
native, in which case a forfeiture is prevented by payment of rent, 
or, upon the other hand, it is in the power of the lessee to compel 
it by failing to do so. 

Where time is not stipulated as essential, and a forfeiture for a 
breach of covenant which admits of accurate and full compensa- 
tion is provided as a mere penalty, whose object is the enforce- 
ment of the performance of another and principal obligation, 
equity will relieve against it, and not permit its use for a different 
aad inequitable purpose. Thus when a forfeiture for non-payment 
of rent was provided for the purpose of compelling the operation 
of the lease, and the lessee, who is operating diligently and at 
expense, by an oversight fails to pay promptly, a forfeiture will 
be relieved against. 

The question of acquiescence is often raised, and this, where it 
b expressed or is clearly proven, of course alters the rule. 

Here silent acquieSiCence does not constitute a waiver of right 
of forfeiture. But any act showing an intention to abandon that 


right/or which is inconsistent therewith (as an extension of the 
time of payment), does constitute such a waiver. It will not, 
except under very unusual circumstances {Duffield v. Hue, mfra^ 
etc.), be implied from the failure of the lessor to notify the lessee 
that he is not living up to the terms of his covenant. Even if 
notice of a forfeiture were required, which it is not, a conveyance 
or the execution and recording of a new lease to another party 
would be sufficient declaration of such intention on the part of 
the lessor. 

Where the aid of chancery is required to enforce a forfeiture, 
such aid will not be given where Uie lessor is guilty of laches, 
although all the other elements necessary to the enforcement are 

XT 4«.-^ » «^ Adamay. Ore Knob Copper Co.^ 7 Fed. 684 (1880), 

vmtM state*. ^ ^ ^ ^ ^^ ^ ^j^^^^ j^^^^ ^^^^ conveyed to 

parties upon the following conditions, to wit: that they at their own 
eonvenieuoe and time, and at their own proper expense, make a fair 
test for minerals and metals on the aforesaid lands, and if any be 
found worth working, work the same and pay to the grantors one- 
fourth of the net profits, and this was the only consideration for the 
grant. Held^ that this constituted a condition subsequent which the 
grantees should perform within a reasonable time, that it required a 
continuous performance, and if discontinued an unreasonable time it 
would work a forfeiture of the estate. 

In such a case, when the grantors remained in possession of the 
premises, upon the breach of the condition they became revested with 
the estate conveyed, unless they waived the forfeiture, and there was 
no need of a clause reserving the right of re-entry for the breach. 

Mere silent acquiescence in an act which had constituted a breach 
of an express condition would not amount to a waiver of the right of 
forfeiture for such breach. 

j-j. . King v. Edwards^ 82 Ap. 558 (1889). K. on November 

^ * 11, 1887, leased to E. the coal and minerals under certain 
land, the lessee covenanting to pay as rent five cents per ton for all 
coal, etc., sold from said premises, ^^ said rent to be paid as follows, 
to wit : The first days of January and July of each year." 

It was also agreed that lessee should '^ have the privilege " to occupy 
the surface necessary for the erection of machinery, etc., for tram- 
ways, sinking shafts, etc. On April 14, 1888, lessee had not taken 
out any coal, etc., had not paid any rent, had erected no machinery 
and sunk no shaft on the property, and no mine had been opened, but 
lessee had also leased some adjoining land from other parties and had 
sank a shaft thereon, and was running it towards the land in question 

^ Forfeiture apon distinct gionnds, lecting to work the mine, is pxoTided for 
apftrt . from taything contained in the in Wisconsin hj Ann. Stats^ 1889, sees. 
iMse, Tis., de£rwidli\g the lessor or nc!i^ 1^7i 1^9. 



iritfa a Tiew to opening a mine thereon. The court below having 
found, as a fact, that the lessee was proceeding with this work with 
reasonable diligence, it was held that no forfeiture of the lease had 
taken place when lessor gave notice thereof on April 14, 1888.^ 
. Mkkle Y. Douglas, 75, 78 (1888). The lease provided for 

^^*' forfeiture for non-payment of royalty, and also that new build- 
ings placed upon the land by lessee might be reserved at the termina- 
tion of the lease, *^ unless all right tiiereto has been forfeited by a 
forfeiture of this lease." HMy that the right to remove buildings 
within a reasonable time was not lost by forfeiture for non-payment 
of royalty. The forfeiture for non-payment was a forfeiture of the 
lease only, and it should clearly appear that it also provided for the 
forfeiture of the buildings before it can be declared so. 

Wickersham v. Chicago Zinc Co., 18, 481 (1877). Under 
a mining lease under royalty for the term of twelve years, by 
which it is provided that the lessee should have the right to commence 
mining coal at any time, and he contracted to do so as early as he 
could make the necessary preparations; the lessee, having failed to 
avail himself of his right for eighteen months, during which time the 
lessor notified him that the contract was forfeited, and. sold the land 
to another, who developed the coal thereon, was estopped from assert- 
ing any rights under his lease. 

It is assumed in this case that where nothing is done by the lessee 
under such a lease, a purchaser of the land, whose vendor had in turn 
parchased from the lessor, was not affected with constructive notice of 
the lease.' 
MiohiiEan Wakefield v. Sunday Lake M. Co., 85, 605 (1891). 

coigtm. rpj^^ failure to pay royalties when due will not work a for- 
feiture, unless there is a provision in the lease that upon breach of such 
covenant it shall become void. 

The lease in this case provided that in case of failure to pay royalty 
or rent at the times mentioned, or of the non-performance of any of the 
covenants made by the lessee, the lessor might re-enter and repossess 
the property and expel the lessor, eta, and after such re-entry the 
lease should become null and void. It was held that the right to rer 
enter might be waived or deferred by any act extending the time 
within which payment might be made. An assurance given at the 
time of the service of a notice to quit, that another notice would be 
given before any proceedings were taken, deferred the right of re-entry 
until such notice should be given. 

Subsequent assurances given to lessee's officers as to the time in 
which royalties might be paid under the statute authorizing sununary. 
proceedings for the recovery of lands, further deferred the right of 
re-entry until such time elapsed or < notice of abandonment of such 
proceedings was given. Giving notice to quit and such subsequent 
assurances was notice to lessee of lessor's election to proceed to re- 
cover possession under the statute, and there could then be no re-entry, 
except pursuant to the statute, unless such proceedings were abandoned. 

A court of equity will not recognize an entry made by collusion with 
lessee's servant, nor can a possession necessary to support a bill to 

1 See oomment on p. 148. * See eomiiiaiil on p. 148. 


quiet title be predicated lipcm an entry Becured by misrepresentation as 
, to its purpose. 

Upon restoration after dispossession by such an illegal re-entry, tiie 
lessor must account to the lessee for the ore taken out by him at its 
market value, less the royalty and the actual cost of operating the 
mine, and of permanent improvements made by him, and also money 
actually paid by him for labor claims against lessee's property. 
MiBMuri Oliver y. GoetZy 125, 370 (1894). Defendant leased to 
plaintiff for a term of thirty years a tract of land for the 
purpose of establishing manufactories thereon, of digging and quarry- 
ing stone or other mineral substances therefrom, and manufacturing 
therefrom such substances, etc., as he might see fit. Plaintiff failed 
to do any of these things, but after carrying away certain specimens of 
the minerals joined a pool by which he agreed not to work the minerals 
for three years. Held, he could not recover the land in ejectment. The 
lease only gave him a right of possession for the uses therein specified, 
and he had prevented himself from using the land for these purposes 
for three years ; and after the expiration of that time a court of law- 
will not assist him to obtain the benefits of the contract, because he 
had failed to demand possession within a reasonable time. 
-- -y 1- Allegheny Oil Co, v. Bradford Oil Co., 21 Hun, 26 
jjiew xorK. (iggQ^^ affirmed in 86, 638. A lease of land for a term of 
years for the purpose of boring for oil and digging for minerals, the 
lessor reserving one-eighth of the product and the use of the land for 
purposes of tillage, with a provision that the lease shall become void 
unless the lessee shall commence to bore, dig, etc., or cause the same to 
be done, within nine months, is void upon the lessee's failure to comply 
with the provision and is not merely voidable. As the lessor continued 
to occupy the land it was not necessary for him to re-enter or give no- 
tice of his intention to enforce the forfeiture. £ven if such notice were 
necessary, the execution and recording of a new lease to another party 
would be sufficient declaration of such intention. 

Shepherd v. McCalmont Oil Co., 38 Hun, 37 (1885). N., the owner of 
land, entered into agreement with W., by which he conveyed to. him » 
his heirs, executors, administrators, and assigns, the exclusive right of 
entering upon any part of the said land, of erecting buildings, engine, 
fixtures thereon, the right of way to and from the same for the purpose 
of searching for minerals, and to mine, bore, or excavate for oil or any 
other valuable volatile or mineral substance, and to carry on such 
mining, etc., to any extent he might deem advisable, but not to hold 
possession of any part of the land for any other purpose. 

The consideration was one-tenth the product ; and W. covenanted to 
commencie boring or excavating, etc. , within one year, or as early as 
practicable thereafter' as he might deem expedient, or forfeit all right 
under and by virtue of the agreement. N. reserved the right to till the 
land. The above agreement was made in 1 865. In the same year W. as- 
sighed t() the plaintiff. In 1867 N. conveyed to R. , without reservation, 
who in 1881 conveyed to M., who conveyed todefendant. Neither W. nor 
plaintiff ever entered upon the land or took any steps to exercise their 
rights under the agreement until 1881, after title acquired by defendant. 
The plaintiff could not then enforce his rights which were forfeited. 


It is not necessary for N. or his grantees to give notice of an inten- 
tion to enforce the forfeitore. Even if notice were required, N.'s con* 
veyance after expiration of the time limited was a sufficient declaration 
of such intention. Allegheny Oil Co. v. Bradford Oil Go,^ 86 N. Y. 
638, followed. 

Eaion v. Wilcox, 42 Hun, 61 (1886). In May, 1881, defendant E. 
leased to plaintiff W. a piece of land, ^^ with the right to take, bore, and 
mine for and gather all oil or gases found in and upon the premises," 
'^ for twelve years ... or as long as oil is found in paying quanti- 
ties," the lessor to have one-eighth of the product The lessee 
covenanted *^to commence operations for said mining purposes, and 
prosecute the same on some portion of the land within two years from 

this date, or thereafter pay to the party of the first part (E.) $ per 

— , until work is conflmenced. 

'^ This lease shall be null and void and at an end unless said second 
party shall witiiin six months commence and prosecute with due dili- 
gence, unavoidable accidents excepted, the sinking and boring of one 
well ... to a depth of 1,200 feet, unless oil in paying quantities 
is sooner found. ... If the party of the second part fails to keep 
and perform the covenants and agreements by him to be kept and 
performed, then tiiis lease shall be null and void, and surrendered 
to the party of tiie first part" Within six months from the date of 
the lease W. drilled a well of the required depth, natural gas being 
foand at the depth of 1,045 feet in lai^e quantities, and oil, but not 
in paying quantities, at 1,093 feet W. ased the gas for fuel in 
driving 4iie well, but in no other manner. In 1882 W. removed his 
engines, leaving his casing in the well, and ceased to carry on mining 
operations. In 1884 E. leased the premises to T., who assigned to 
A. G. Co., who entered into possession, and collected and sold the 

In an action by W. to restrain interference with or appropriation of 
the gas : Held, that W.'s action did not give E. the right to forfeit the 
lease to W. There was no covenant requiring the lessee to continue 
horiog oil wells until he found oil in paying quantities. The covenant 
to commence and prosecnte mining operations within two years, etc., 
was void for uncertainty by reason of the unfilled blanks. A contrary 
decision could not be sustained, because the contract was hard and 
ooconscionable by reason of making no provision to give the lessor a 
part of the gas. 

North Carolina. (^^^^"^^"^^ ▼• Morehead, 89, 31 (1893). A lease for 

ninety-nine years contained a covenant by the lessor 
that the lessee might enter upon the land and dig for gold, silver, and 
other metals and minerals, might use timber and erect machinery, and 
at any tim^ when he thought proper might surrender the lease ; and the 
leasee covenanted to pay to the lessor one-tenth of the metal so ob- 
t^ned. J9eM,. there was an implied covenant by the lessee to work 
the mine with reasonable diligence, and a failure to work it, worked a 

^^The right of the landlord to enter for the forfeiture of a term by 
^e tenant arises either by implication of law, without any stipulatiou 


upon the subject between the contracting parties, or where it is a matter 
of express stipulation in the deed or contract." ^ 

Maxwell v. Todd, 112, 677 (1893). Piaintiffs claimed under a 
lease, dated Oct. 19, 1879, of the tract in question *^ for the pur- 
pose of boring, mining, and operating for gold, silver, and such other 
minerals as inay exist therein, or be found for the period and term of 
ninety-nine years,'' the lessee to have exclusive rights to mine and also 
rights of way, etc., and the right to sublet, the consideration being one 
dollar and one-tenth of the net proceeds. Defendants claimed that the 
lease had been forfeited for failure to work the mines diligently. Bur- 
well, J. : *^ There is in it no stipulation that a failure to open and work 
the mines shall cause a forfeiture. But the construction put upon the 
contract by the law is the same as if such a stipulation had been ex- 
pressly written therein." Oonrad v. MoreheM, 89 N. C. 81, quoted. 
The trial judge ^^ told the jury that a failure on the part of the lesseea 
to work the mine for five years would cause a forfeiture of which the 
lessors might take advantage, if they saw fit to do so. Certainly the 
plaintiffs have no right to complain that the period fixed by his Honor 
(five years) was too short No re-entry by lessors was practicable or 
necessary. They were in possession of the land at tbe date of the lease, 
and thereafter continued in possession ; that possession being subject 
to the mining rights of the plaintiffs until those rights were lost to 
them by non-user and abandonment according to the terms of the con- 
tract as construed by the law." 

Hawkins v. PeppeVj 117, 407 (1895). H. by instrument in writing 
sold to P. in consideration of one dollar ^^ all our right, title, interest, 
and claim in and to all the iron, copper, and lead ores, and also all 
other minerals that may be found in " certain land, with the usual min- 
ing rights, and gave P. full power to convey to other parties. In con- 
sideration thereof P. agreed to make examination of the land, and if 
any valuable minerals were found, to pay H. half the net amount 
received for them, or in case of conveyance to pay H. $200 and 
in addition half the net receipts. 

P/s failure to work the mine for eight years worked a forfeiture of 
the lease. Where the performance of an act is the only consideration 
of the contract, it should ordinarily be construed as a condition. 

The grant of the power to convey *^ is utterly irreconcilable with any 
other mutual understanding but that the title was conveyed to the 
defendant in order that, after working it and paying over the royalty 
agreed upon, P. should be empowered to sell the developed mine upon 
paying $200," etc. 

*^ We conclude that there was manifestly no intent to vest in the 
defendant P. an absolute and indefeasible estate for the nominal con- 
sideration, but that it was the mutual understanding that th^ fee should 
pass to him for the temporary purpose of selling within a reasonable 
time, and that meantime there was an implied condition attached that it 
should be fitted for active operations by P. or for examination with a 
view to purchase." 

Be-entry was not necessary to complete the forfeiture. 

^ The failure to work in this case waa for more than twenty yean. See ooliuiiail 
on p. 148* 


Tdey v. MayerSj 25, 397 (1855). A lease of a coal 
bank providing that if the lessee suffer the bank to be 
idle for a year it shall be taken as an abandonment, a forfeiture is not 
worked by the abandonment of tlie opening on the leased land, the 
lessee continuing to take out coal through an opening from an adjoin- 
ing tract owned by him. The princip^ thing granted in the lease of 
a coal bank is the right to take coal out of it, and not the' passage to 
the coal ; and an abandonment under the above provision does not 
take place so long as coal is taken out through an entry. 

Moyen t. TOetfy 82, 267 (1858). In a lease of a coal bank which 
provides that the lessee shall put the said coal bank in good working 
ofder for the rent of the first year, and thereafter pay a certain sum 
f (HT every bushel of coal taken out, and that, if the said coal bank 
should stand idle by the act of the lessee when it would yield coal for 
the term of one year, it should be taken as an abandonment of the 
lease, and treated accordingly ; the clause of forfeiture does not apply 
to the first year. 

Davis V. MosSj 88, 346 (1861). Where a lease provided that if the 
lessee should cease mining operations for twelve consecutive months, 
it would become void, the entry of the lessee from time to time to 
dean and grease an engine whidi he had erected on the premises and 
used in mining was not a continuance of mining operations, and would 
not prevent » forfeiture. 

McKniglU v. Kreutz^ 51, 282 (1866). A provision in a coal lease 
Hiat the lessees shall carry on their operations so as not to injure the 
surface, and not to spoil the coal, and that ^^ in order to carry this 
condition into effect " the lessors reserved the power to send from 
time to time an expert into the mine to examine the manner of busi- 
ness, and get his approval thereof, is not a condition, but a covenant, 
and its br^ush does not work a forfeiture. 

The lessee agreed to mine at least seventy-two thousand bush- 
els, to pay 2^ fixed sum for each one hundred bushels, and to make 
monthly returns, with a provision that, in case of neglect to comply 
with the covenant for the payment of rent, the lessor might determine 
the lease* The lessee having failed to comply with these provisions, 
and the lessor having taken possession, the latter was presumed to 
have done so in exercise of his right to terminate the lease ; and it was 
error to submit the question of waiver of this right to the jury. 

*^ Conditions that work forfeitures are not favorites of the law, and 
nothing less than a clear expression of intention that a provision shall 
be such will make it a condition upon which the continuance of an 
estate granted depends. Here there is no such intention apparent. 
True, in providing a mode by which the stipulation might be enforced 
the parties speak of it as a condition, but it is evident they used the 
word in a sense in which it is often used, that of understanding, agree- 
ment, or covenant That it was not intended to be a cause of dives- 
titure of the estate of the lessee, is plain from the fact that there is no 
declaration that doing injury to the surface or spoiling the coal should 
work a forfeiture ; wUle in r^ard to breaches of other covenants there 
18 such a declaration. Having expressed for what causes a forfeiture 
might be claimed, it is not to be inferred that there are any grounds of 
foifeitore not declared to be racbi'' 


Ktefutiv. McKnigJUj 53, 819 (1866). By a lease of coal under land^ 
the lessee agreed to take out 72,000 bushels per annum, for which he 
was to pay the lessor seventy-five cents per bushel at the end of each 
month. He was ousted at the end of five months. He then brought 
ejectment, and showed 6,064 bushels mined, and payments amounting 
to $43. 

Heldf he could not recover, having shown neither performance nor 
offer of performance. Had there been a sybstarUidL performance or a 
bona fide attempt at performance^ the putting another tenant on the 
premises without demand or notice to lessee would not have been a 
proper method of enforcing a forfeiture. 

Chicago & AU, Oil & Mining Co. v. CT. 8. Petroleum Co,j 57 j 83 
(1868). Pending an action at law for the forfeiture of an oil lease, 
where the alleged breaches of covenant are doubtful, and a master in 
equity had found that there was no wilful or substantial breach, a court 
pf chancery will not appoint a receiver of the lessee's oil. 

SemblCy that a breach of covenant to deliver lessor's share of the 
oil in barrels, where the flow oi oil was so unexpectedly great as to 
make such a delivery impracticable, will not work a forfeiture under a 
clause providing ^' that a failure of the said party of the second part 
to comply with any one of the reservations, conditions, or agreement^ 
contained in the within instrument, which by its terms are to be done, 
observed, kept, and performed by the said party of the second part^ 
shall work a foifeiture of the rights hereby granted." 

Eynd v. Eynd Farm OU Co.^ 63, 397 (1869). R. granted to W. the 
exclusive right to bore for oil on his farm, R. to have one-fourth of the 
product, and in case, after reasonable experiment, W. should be satisr 
fied that oil could not be found in profitable quantities, the lease to 
determine, and possession to revert to W. ; should oil be found in 
profitable quantities, the lease to be perpetual, W. not to interfere 
with R.'s farming. On part of the land boring had been profitable ; 
on the rest, operations had been abandoned. R. alleging that they had 
not been successful, brought ejectment for the latter part. The jury- 
having found that the work of obtaining oil was prosecuted with rea- 
sonable diligence, and oil found in profitable quantities, there was no 

Kama v. Tanner j 66, 297 (1870). By the terms of an oil lease 
the lessee was ^^ bound, under the penalty of forfeiture of the nght» 
and privileges hereby granted, to commence operations by boring or 
mining within one year from date hereof, and prosecute the same with 
reasonable diligence." 

The lessor having entered for condition broken, and leased to other 
parties, the lessee brought ejectment. The court chaiged as follows : 
*' But although the mere lapse of time was, in my opinion, not sufficient 
to warrant a declaration of forfeiture or seizure of the premises, still, 
if aided and strengthened by the acts and declarations of the tenaiit 
evincing the intention permanently to abandon, or to do so for any un- 
reasonable time, it would justify the entry and forfeiture in propoirtion 
to the established facts and circumstances of abandonment. Of thv» 
the joiy are the Judges. There is, therefore, but one question for tl^ 
jury: Weie liiere sufib acts and circumstances, or such unreasonabla 


delay, manifesting an abandonment as justified the entry by Pftrker and 
declaration of fo^eiture." This was held not to be error. 

*^ Abandonment of the lease was a question of intention, and was to 
be determined only on the investigation of facts." 

Brown v. Vandergrift^ 80, 142 (1875). Agnew, C. J. : "The dis- 
covery of petroleum led to new forms of leasing land. Its fugitive 
and wandering existence within the limits of a particular tract was un- 
certain, and assumed certainty only by actual development founded 
upon experiment. The surface required was often small compared 
with the results when attended with success ; while these results led 
to a great speculation by means of leases covering the lands of a 
neighborhood like a flight of locusts. Hence it was found necessary 
to guard the rights of the land-owner, as well as public interest, by 
numerous covenants, some of the most stringent kind, to prevent t^eir 
lands from being burdened by unexecuted and profitless leases incom- 
patible with the right of alienation and the use of the land. Without 
these guards, lands would be thatched over with oil leases by sublet- 
ting, and a farm riddled with holes and bristled with derricks, or 
operations would be delayed so long as the speculator would find it 
hopeful or convenient to himself alone; Hence covenants become 
necessary to regulate the boring of wells, their number, and time of 
succession, the period of commencement and of completion, and many 
other matters requiring special regulation. Prominent among these 
Was the clause of forfeiture to compel performance, and put an end to 
tJie lease in case of injurious delay or a want of success. These leases 
were not valuable except by means of development, unlike the ordinary 
terms for the cultivation of the soil or for the removal of fixed minerals. 
A forfeiture for non-development or delay therefore cut off no valuable 
rights of property, while it was essential for the protection of private 
ind public interest in relation to the use and the alienation of property. 
In the present case the lease was modified by adding immediately after 
the clause of forfeiture a stipulation that, should the lessee not com- 
inence operation at a time specified, he should pay to the landlord 
thirty dollars for each and every month until such time as drilling 
should be •commenced. The lessee, having paid for three months' 
delay, suffered eleven months to elapse without payment or tender, 
and then tendered the whole sum, which the landlord declined to 
accept, and insisted on the forfeiture, he in. meantime having made 
a new lease to a party who went into possession. The learned judge 
below held that the lease was forfeited by the omission to pay the 
tiionthly sums, the lessee having done nothing in performance of 
his covenants. We cannot pronounce this to be an error, in view 
of the nature of the lease, the true intention of the clause of for- 
feiture, and the want of any valuable interest acquired by the lessee, 
by performance. That time may be made of the essence of the con- 
tract by the express agreement of the parties has been so often de^ 
cided that no citation of authority is necessary. In a case like this 
equity follows the law, and will enforce the covenant of forfeiture, as 
essential to do justice. It is true as a general statement that equity 
abhors a forfeiture ; but this is when it works a loss that is contraiy to 
^nity, not when it works equity, and protects the land-owner against 


file indifference and laches of the lessee, and prevents a great mischief, 
as in the cfise of such lessees. To perpetuate an oil lease forever by 
the payment of a monthly sum, as here, at the will or caprice of the 
lessee, would work great injustice. The covenant of forfeiture was 
not abrogated entirely, but only modified. *' 

Munroe v. Armstrong^ 96, 307 (1880). A lease of a piece of land 
for oil purposes for twenty years, or until forfeiture, lessees to prose- 
cute work with due diligence until success or abandonment, and lease 
to be forfeited if oil is not found in paying quantities, or if lessees 
cease to work for thirty days at any time. 

Held^ lessees might sink as many wells as they pleased so long as 
they worked with due diligence, but that a cessation of work for thirty 
days worked a forfeiture, and lessor might lease to another. '* In the 
rapid development and exhaustion of oil lands, cessation of work for 
nine months is a long, period. Often, in far less time, the fluctuation 
in prices of lands and leaseholds is very great. Perhaps in no other 
business is prompt performance of contracts so essential to the rights 
of the parties, or delay by one party likely to prove so injurious to 
the other.'' 

Trvby v. Palmer^ 4 Cent. Rep. 925 (1886). In a lease which de- 
clares that the land shall be occupied and worked for petroleum, and 
for no other purposes, and that if oil be not found in paying quanti- 
ties within four years, the lease shall be null and void ; the produc- 
tion of gas will not satisfy the conditions of the lease and prevent a 

Cryan v. RideLaperger^ 7 C. C. B. 473 (1887). An oil lease pro- 
vided that one well should be completed within three months, a second 
in a year, and a third within two years ; each well to hold one-third of 
the lease ; and failure to complete a well to forfeit the lease pro tarUo. 
The first two were completed according to contract ; the third was not, 
the reason being that lessee, though he diligently endeavored to secure 
workmen, was unable to do so on account of extreme cold w^&ther. 
This was not a legal excuse for not completing the well, and a for-* 
feiture was worked. A virtual agreement by lessor that lessee might 
complete the well when the wea&er would permit, and work done on 
the faith of lessor's action, is not enough to work an estoppel. 

Cfaley v. KeUerman, 123, 491 (1889). A lease of land for the pur- 
pose of boring for oU and gas provided that operations should be 
conunenced within sixty days, and one well completed within three 
months therefrom, in default of which the lessees were to pay $100 
per annum within three months after the time for completing such 
well ; *^ and failure to complete one well, or to make any of such pay- 
ments within such time, and at such place as above mentioned, ren- 
ders this lease null and void^ and to remain without effect between the 
parties." Lessees having failed to complete well or make payment, 
lessor brought an action of covenant for the penalty. Held^ he could 
recover, and defendant could not set up forfeiture of lease as a de- 
fence. The lessees' acts had worked a forfeiture of their rights, but 
not those of the lessor. 

Hodi V. Bass^ 126, 13 (1889). Lease of land for mining of clay 
and ochre, by which lessee agreed to pay twenty-five cents per ton, in 


qoarteil; payments, for ochre mined, and to mine not less than fiye 
hundred tons, and pay for the same at the end of each year, ^^ in de- 
fault of which the above lease is to be null and void." ^^ It is farther 
agreed, that if any of the covenants above mentioned should not be 
complied with for the term of three months, then the above lease is 
to be null and void/' These clauses must be construed together* 
Lessee having failed to mine five hundred tons by the end of the year 
or to pay royalty on that amount, a forfeiture did not arise until three 
months after the end of the year, and it was prevented by payment of 
royalty within that time. 

Duffleld V. Hue, 129,- 94 (1889). The right of the lessor in an oil 
lease to insist upon a forfeiture of the lease by reason of a failure of 
the lessees to put down a seventh well in a stipulated time, is waived 
by his acquiescence in the failure to put down two or three of the pre- 
ceding six wells within the period stipulated in the lease. '^The 
lessees might well believe, from such acquiescence, that strict per- 
formance of the terms of the lease as to the time of putting down 
the wells would not be insisted on, and that a reasonable notice should 
be given before a forfeiture could be claimed on account of failure to 
sink the seventh well." 

WUa T. Manfrs. NaJt. Oa» Co., 130, 222 (1889). Lease for twenty 
years of premises for the purpose of excavating gas and oil, by which 
the lessee covenanted to complete a well by a fixed date, and upon 
failure to do so to pay the lessor $1,000 per year, in quarterly pay- 
ments, until he had done so, with a provision that on failure to perform 
the covenants of the lease the privilege and easements thereby given 
should cease and become void. This provision was inserted for tiie 
protection of the lessor, and he had under it an undoubted right by 
reason of the lessee's failure to complete a well, or to make the quar- 
terly payments provided for; but the lessee had no right to declare 
sach a forfeiture, and could not set it up as a defence if the lessor, 
affirming the continuance of the lease, brought suit for the unpaid 
quarterly payments. 

Clark, J.: ^^ A distinction formerly prevailed between a proviso de- 
daring that the lease should be void on a specified event, and a pro- 
Yiao enabling tiie lessor to determine it by re-entry. It was held that 
in the former case the lease became absolutely void on the event 
named, and was incapable of being restored by acceptance of rent 
or other act of intended confirmation ; whilst in the latter some act, 
BQch as entry or claim, must have been performed by the lessor to 
manifest his intention to end the demise, which was voidable in the 
interval and consequently confirmable. The force of this distinction, 
it is said, in Taylor on L. & T., § 492, has been almost, if not quite, 
abated by the modem decisions, which establish that the effect of 
a condition making a lease void upon a certain event, is to make it 
void at the option of the lessor only, in cases where the condition is 
intended for his benefit, and he actually avails himself of his privilege. 
To the same effect is 2 Piatt on Leases, 327. But it is entirely op- 
tional with the lessor whether he will avail himself of his right or not, 
although by the terms of the proviso the term is to cease or become 
void for the non-performance of the covenant ; and if the lessor does 


not avail himself of it the term will continae, for the lessee canaoi 
elect that it shall cease or be void. Taylor on L. & T«, supra. 
Where there is a proviso in a lease that on non-payment of rent the 
term shall cease, the lessor and not the lessee has the option of deter- 
mining the lease upon a breach made. Beid v. Par«on«, 2 Chit 247. 

'^ The English law in this respect had been generally followed in this 
country, and such a lease is held to be gooid until avoided ; though 
the lessee is estopped to set it up against ti^e lessor. A lessee cannot 
avail himself of his own act to vacate a lease, on the principle thai 
no man shall be permitted to take advantage of his own wrong. 
Wood's L. & T. 1204. So Mr. Parsons in his Law of Contracts, Vol. 
I., p. 507, referring to the distinction formerly recognized between 
the effect of a proviso declaring that the lease shall be void in a 
specified event, and a proviso enabling the lessor to determine it by 
re-entry, says : ^ This distinction is now exploded, and it is held that 
the lease is voidable only at the election of the lessor, but not of the 
lessee, though the proviso expressly declare that it shall be void/ To 
the same effect are the cases of Clark v. Jonea^ 1 Den. 516, and Fhdps 
V. CJiessoTiy 12 Ired. 194, and many others that might be referred to. 

^ ^ In Pennsylvania the older doctrine would seem at first to have been 
adhered to, that in a lease for years with condition, if the condition 
be broken by the lessee, his interest was ipso facto void by the breach, 
and no subsequent recognition of the tenancy could set it up. Kenrick 
V. Smick^ 7 W. & S. 41. In the case cited there was a lease of land 
upon condition that the rent should be paid upon certain specified 
dates, and if a certain default was made for three months, neglect to 
pay after ten days' notice should render the lease null and void. The 
default occurred and notice was given, and it was held that after ten 
days the lease was ip8o facto void, without re-entry, and could not 
afterwards be affirmed or continued. In Sheaffer v. Sheaffer^ 37 Pa. 
525, the doctrine announced by Justice Sergeant in Kenrick v. Smick^ 
siepro, was adhered to ; the English cases were brought into contrast 
with the doctrine of Kenrick v. Smick^ and it is admitted that the rule 
of the English courts is followed in most of the States of the Union. 
In Dains v. Moss, 38 Pa. 346, the rule of the previous cases is agun 
apparently recognized, but its rigor is relaxed in this, that the for> 
f eiture is said to depend upon the terms of the instrument, ^ unless 
there be evidence to affect the landlord with a waiver of the breach, 
like the receipt of rent or other equally unequivocal act.' 

*^The distinction between the Pennsylvania cases referred to and 
the weight of authority elsewhere, therefore, would seem to be that 
by the former the lease, upon breach of the condition, is ipso facto 
void, unless by some unequivocal act of the lessor it is waived, whilst 
by the latter it is void if the lessor elects by some positive act to take 
advantage of it. We do not understand that in either case a re-entry 
is required to complete the forfeiture. This almost amounts to a dis- 
tinction without a difference. In practice, the prima fades being 
different, it merely shifts the burden of proof from one party to the 

'' It will be observed, moreover, that the Pennsylvania cases already 
referred to are all cases in which the forfeiture was set up by the lessor 


upoD the default of the lessee ; in none of them did the lessee set up his « 
own default as a canse of forfeiture. No case has been called to our 
attention, in this or any other State, in England or elsewhere, which 
recognizes the doctrine that a party may take advantage of his own 
wrong, or set up his own default to work a forfeiture of his own con- 
tract Persons may, of course, contract in this form and to this effect 
if they choose, but we do not understand the parties to this contract to 
have 80 intended. But the rigid rule of Kenrick v. Smick^ supra^ is 
farther relaxed in the very recent case of QaUey v. Kellerman^ 123 
Pa. 491." 

^' Thus it appears that the distinction formerly maintained between 
the rulings of ttie English courts and of the courts of our sister States, 
and the rulings in Pennsylvania, is no longer found to exist We have 
by slow approaches at last apparently turned into the general current 
of cases, in which is found, without doubt, the great weight of au* 
tbority, both in England and in this country." 

Hoch V. Bass^ 133, 328 (1890). Lease of ochre mine (same lease 
M in s. c. 126, 13, supra) ^ by which lessee covenanted to mine a cer- 
tain quantity, and pay a certain royalty on a minimum quantity, and 
that '^ if any of the covenants above mentioned should not be com- 
plied with for the term of three months, then the above lease to be 
null and void." 

The lessee being in possession after faUure to pay royalty, lessor 
could not maintain a bill in equity for injunction to enforce a forfeit- 
ure. There was an adequate remedy at law by assumpsit for arrears 
or ejectment for the land. 

Palmer v. Trubyj 136, 556 (1890). The lessee of land demised for 
the production of petroleum alone, who obtains gas but not oil, and is 
thereupon dispossessed by ejectment brought upon an alleged forfeit- 
ure, has no equity to be reimbursed the expenses of his operations out 
of the proceeds of the gas obtained. The terms of the lease did not 
contemplate or provide for the production of gas. 

Thompson v. Christie, 138, 230 (1890). Upon a covenant in an oil 
lease, that the lessee shall drill a well within a specified time, and on 
failure so to do shall pay the lessor S40 per annum until such well is 
commenced, the lessor cannot recover In ejectment for failure to drill 
the well, tlie lease containing no clause providing for a forfeiture of the 
lessee's rights upon such failure. The rule prevailing in equity is, 
that to enable the lessor to declare and enforce a forfeiture, the rigJU 
90 to do must be distinctly reserved; the proof of the haj^peyu'ng of the 
event upon which it is to be exercised must be clear, the right must be 
exercised promptly, and the result of enforcing tJie forfeiture mu^st not be 

The plaintiff submitted evidence of a parol agreement contempora- 
neous with the defendant's lease, and on the faith of which it was 
signed, that the annual pa3rments should commence one year earlier 
than stipulated for, and that upon failure to make the first of such pay- 
ments the lease should be forfeited ; but this was denied by the lessee. 

For several months before the suit was brought the defendant had 
l)een in actual possession engaged in drilling a well, and there had 
been no attempt to exercise a right of forfeiture except by the device 



of executing the new lease to the plaintiff, and the defendants proposed 
to show offers of payment refused by the lessor. 

Upon the facts of t(he case as they were shown (and as the defend- 
ants offered to show them), the plaintiff would not be entitled to 
have the lease, under which the defendant held, reformed, to enable 
him to assert a forfeiture in this action, as in equity the conscience of 
a chancellor would not be moved to aid him therein. Though a parol 
engagement for a forfeiture of the prior lease, for failure to commence 
the well or pay the rental, was entered into, yet an assignee of the 
lease for a valuable consideration and without notice of the agreement 
would obtain and could convey a good title even to a vendee who had 
actual notice. 

Kennedy v. Crawford^ 138, 561 (1890). K. made an oil and gas 
lease not to exceed fifteen, years to C., reserving royalty in kind upon 
the oil and of ten per cent of the net proceeds of the gas. C. agreed 
^^ to commence drilling on said tract within ninety days from June 27, 
1885, and to prosecute said drilling with due diligence to success or 
abandonment, and should oil or gas not be pumped or excavated in 
paying quantities on or before June 27, 1886, then this lease to be 
null and void." There was a further provision for forfeiture, for fail- 
ure to comply with any of the terms or conditions of the lease. 

This lease required that within the year a product should be obtained 
capable of division between the parties in the proportions mentioned in 
the lease. Unless this was done the drilling was not prosecuted to 
success, provided lessee was not prevented by lessor. 

Even if oil or gas was found in paying quantities, lessee was not at 
liberty to leave work from December to April. To do so would not 
be prosecuting the drilling with due diligence. The lease was not 
complied with by simply excavating oil or gas in paying quantities at 
any time before June 27, 1886. He was subject to an obligation of 
due diligence all the time. The question of what constitutes dUigence 
is for the jury. 

Ray V. West Pa. N. Gas Co., 188, 576 (1890). Lease of a tract for 
the purpose of operating for oil and gas, lessor to receive one-tenth of 
the oil produced and $500 per annum for each well drilled in case gas 
was conducted and used off the premises. The lease contained tiiis 
clause : " The party of the second part agrees to pay, within ten days 
from execution of this lease, the sum of $53 ; and if a well is not com- 
pleted within six months from the execution of this lease, the said 
second party agrees to pay a further sum of $53 ; and so on, con- 
tinually every six months during the continuance of the term herein 

^' The said sum of $500 gas rent shall be paid within one month from 
the time said well is completed on said premises, and to be paid an- 
nually in advance thereafter. It is further agreed by said second party 
that if a well is not completed within fifteen months from the date of 
this lease, they are to pay a further sum of $250, said sum to be a 
credit on well when drilled ; and in case of failure to complete one well 
within such time, the party of the second part hereby agrees to pay 
thereafter to the party of the first part, for any future delay, the sum of 
$106 per annum, within one month after the time for completing such 


wen, as above specified, payable semi-annually at the First National 
Bank of Washington, Pa. ; and the party of the first part hereby agrees 
to accept such sum as full consideration and payment for such yearly 
delay, until one well shall be completed. And a failure to complete 
one well, or to make any sUch payment within such time and such 
place, as above mentioned, shall render this lease null and void, and 
to remain without effect between the two parties." 

The plaintiff's statement averred that the defendant had not com- 
pleted a well on the demised premises, and claimed to receive $53 
due Jan. 7, 1889 ; »53 due July 7, 1889 ; $250 due Oct. 7, 1889 ; 
and t53 due Jan. 7, 1890. Defence was that lessor had never been 
in posse0sion, and that failure to put down a well avoided the lease 
without re-entry^ and there was consequently no liability to pay. 

Heldj lessee could not set up a forfeiture. The fact that lessor was 
in possession is of no significance. 

Fennell v. Ouffey, 139, 341 (1890). An oil lease provided that les- 
sor should complete one well within six months, and upon failure to do 
so should pay the lessor ^^ for such, the sum of $231 per annum, 
within three months after the time for completing the well," with a 
provision that a failure to complete the well or make the payment 
within such time should avoid the lease. 

The lessee having failed to complete the well, or pay the stipulated 
som, he could not set up a forfeiture as a defence to an action for the 
rental. WiOs v. mu. Gas Co., 138 Pa. 222. 

Springer v. CUizen^ N. G. Co., 145, 430 (1891). By a lease of land 
for the purpose of producing oil and gas the lessee agreed to pay a 
certain sum upon the execution of the lease, a royalty on the oil pro- 
duced, and if gas were produced in paying quantities, a certain annual 
rental on each well. The lease also contained a covenant that the les- 
see should complete a well within six months, and in case of failure to 
do so to pay a certain sum semi-annually until completion, *'*' and the 
parties of the first part hereby agree to accept such sums as full con- 
sideration and payment for such semi-yearly delay until one well 
shall be completed ; and a failure to complete one well or to make any 
of such payments in this lease mentioned, within such time and at 
Buch place as above mentioned, renders this lease null and void, and 
to remain without effect between the parties hereto." 

In an action for these sums, it was held that the lessee could not set 
up a forfeiture. The forfeiture clause was inserted in the interest of 
the lessor, who had the option upon default to assert the forfeiture or 
affirm the continuance of the contract. 

Ogden v. Hatry, 145, 640 (1892). A covenant in an oil lease pro- 
vided that a failure of the lessee to perform ^^ by either completing a 
irell within the term aforesaid, or paying said rental, shall render ^is 
lease and agreement null and void, . . . and all rights ... of any 
and all parties hereunder shall thereupon ... be extinguished, • . . 
as if this agreement had never been made." 

An action for rental was within the rule of Wills v. i\r. Gas Co., 130 
Pa. 222 ; Ray v. Ni Gas Co., 138 Pa. 576, that such a covenant was 
for the benefit of the lessor, and the lessee by his own act and de- 
fault could not relieve himself from a liability already incurred. The 


clauses after the words ^' null and void" added more verbiage, but no 
more force. 

Jones y. West Penn. JST. O. Co.^ 146, 204 (1892). A lessee in an oil 
and gas lease covenanted to complete a well by a certain date, or in 
default thereof pay for further delay a certain yearly rental from the 
time specified. ^^ And a failure to complete such well or to pay said 
rental shall render this lease null and void, and can only be renewed 
by mutual consent." 

The legal effect of the covenant is that the forfeiture is for the 
benefit of the lessor and is at his option, and such effect can be 
changed only by an express stipulation that the lease shall be void- 
able at the option of either party or of the lessee. 

An offer by defendant to prove '^the uniform construction placed 
upon such leases by both lessors and lessees " to be that they were 
forfeitable at the option of either party, was inadmissible. It is no 
more than an offer to show a popular misunderstanding of the law. 

PhiUips V. Vandergrift^ 146, 857 (1892). The lessee in an oil lease 
covenanted to complete a well in a time certain, or in default to pay 
the lessor for further delay a certain yearly rental thereafter; ^^ and 
a failure to complete such well or pay said rental shall render this 
lease null and void, and not to be revived without the consent of both 
parties hereto." 

An action for rental was within the rule of WiUsx. N. Gas Co,^ 
180 Pa. 222, and Ray v. N. Gas Co., 138 Pa. 576, that such covenant 
was for the benefit of the lessor, and the lessee by his own act and 
default could not relieve himself from a liability already incurred. 

Leatherman v. Oliver, 151, 646 (1892). An oil lease provided that 
. the lessee should complete a well on the leased premises within six 
months, ^^or in default thereof pay to the party of the first part for 
further delay an annual rental of five hundred dollars, payable quarterly 
in advance." Tt was further provided that ^* a failure to complete said 
well, or pay said rental for ten days after the time above specified for 
so doing, shall render this agreement null and void, and it can only be 
renewed by mutual consent ; and no right of action shall after such 
failure accrue to either party on account of the breach of any promise 
or agreement herein contained." 

Held, that upon failure to drill the well within six months the lessor 
was entitled to the stipulated rental, and that the latter clause did not 
deprive him of his right of action. By the latter clause the parties 
meant that the lessor could not re-enter and treat the rights of the 
lessee as forfeited or abandoned on the day the default happened, but 
that he must give the lessee ten days of grace in which to make pay- 
ment before he could take advantage of the default to terminate the 
lease. The lessee, however, could not compel the lessor to re-enter so 
as to terminate the lease for his (the lessee's) benefit. 

Heirdz v. Shortt, 149, 286 (1892). An oil lease provided that the 
lessee should complete the first well within six months, ^^ or thereafter 
within sixty days remove all machinery and buildings for the business 
erected and used, and this lease be declared null and void unless 
further prosecuted after the first well drilled. The first well was 
completed within the six months and oil obtained ; but thereafter for 


some four years nothing was done towards the drilling of any other 
well. Held^ that the lease had become void. In view of the nature 
of oil, four years was an unreasonable time. 

Glasgow v. Cliartiers Oil Co^ 152, 48 (1892). An oil lease demised 
the oil and gas under the grantor's land, with the right to go upon and 
operate the land for oil and gas purposes. The lease was to continue 
for five years, and as much longer as oil or gas should be found in 
paying quantities. The consideration was a bonus of one hundred 
dollars, and a royalty of one-eighth part of the oil produced. If gas 
was found, the rental was fixed at three hundred dollars per year for 
each well. The lease then proceeded as follows : '' Provided, however, 
that this lease shall become null and void, and all rights hereunder 
shall cease and determine, unless a well shall be completed on the 
premises within one month from the date hereof, or unless the lessee 
shall pay at the rate of one hundred dollars monthly in advance for 
each additional month.'* 

Held^ that the lease contained no covenant binding upon the lessee 
to pay rent or develop the land. The only penalty imposed upon him 
for failure to operate the land or pay one hundred dollars per month 
for delay was a forfeiture of his rights under the agreement. ^'But 
payment was the means provided by the contract by which the exercise 
of tlie right of the lessor to assert a forfeiture could be postponed. If 
the lessee did not wish to postpone the exercise of such right, he had 
only to refrain from making the payment. This case is not ruled by 
Ray V. The Natural Gas Company y 138 Pa. 576, and kindred cases." 

Drake v. Lacoe^ 157, 17 (1893). After a delay of twelve years, 
equity wUl not decree the forfeiture of a coal lease for non-payment of 

Poterie Gas Co. v. Poterie^ 158, 10 (1893). Where a lessor in a 
mining lease has re-entered in assertion of a claim that the lessee has 
forfeited his rights and the claim is disputed on every ground, a pre- 
Ihninary injunction will be awarded and continued to restrain the 
lessor from continued interference with the premises. 

Poterie v. Poterie Gas Co.j 153, 13 (1893). And under such cir- 
camstances a preliminary injunction will not be* awarded against tho 
lessee to restrain him from entering upon the premises.^ 

Sanders v.^Sharpj 153, 555 (1893). A lease for twenty years for 
^e sole purpose of mining for oil, etc, contained provisions that, in 
consideration of the lease, the lessee agreed ^^ to commence operations 
within one year from the execution thereof, or thereafter pay to the 
lessor four hundred dollars per annum until work is commenced," and 
that *' a failure to pay within sixty days after maturity works an im- 
mediate forfeiture." Heldj that the clause of forfeiture was for the 
protection of the lessor, who could dispense with its provisions and 
affirm the continuance of tiie contract. Wills v. Manufacturers^ NaJtv^ 
ttd Gas Co.j 130 Pa. 222. 

Gibson V. Oliver^ 158, 277 (1893). Lessee in oil lease agreed to 
complete one well within one year, and in case of failure to pay $500 
per annum for such delay, ^^ and a failure to complete one well or to 
make any of such payments . . • renders this lease null and void, 

1 See Poterie Gas Co. v. Poterie, 179 Pa. 68 (1897). 


and to remain without effect between the parties hereto." He further 
agreed to complete a second well within two years, and in case of 
failure to pay $1,000 ^^ or forfeit this lease." In assumpsit to recover 
the penalty for failure to complete the wells, defendant cannot set up 
the forfeiture of t^e lease. 

Cleminger v. Baden Oaa Co.^ 159, 16 (1893). Where an oil lease 
contains a covenant on the part of the lessee ^^to commence opera- 
tions on the aforementioned premises, or forfeit this lease within sixty 
days, and to complete a well on this lease in live months," the lessor 
may forfeit the lease after the expiration of five months if a well has 
not been completed within that time. 

*' The gist of the covenant was to have a well finished in five months. 
The beginning in sixty days was only material as a step towards that 
end, and the stipulation for a forfeiture applies equally to both 
branches of the covenant." 

There was a delay in starting operations within sixty days. The 
lessee desiring to assign the lease, had a conversation with tibe lessor 
as to the delay. The result of this conversation he stated to be as 
follows: '^The conclusion was that Mr. Phillips (the lessor) acqui- 
esced in the delay and acknowledged the lease on the assurance that 
there would be a well put down." Held, that there was no waiver of 
the right to have a well completed within five months. 

McMiUan v. Philadelphia Co., 159, 142 (1893).* The lessee in an 
oil lease agreed to complete a well within three months, and in case of 
failure to do so to pay as rental $25 a month, until the completion of 
one well, '^ and a failure to complete such well or comply with any 
of the foregoing conditions, or to make any of such payments within 
such time and at such place as above mentioned, renders this lease 
absolutely null and void, and no longer binding on either party, and 
will revest the estate herein granted in the lessor, and release the 
lessee from all his covenants herein contained, he having the option to 
drill said well or not, or pay said rental or not as he may elect." This 
clause was for the benefit of the lessor, who might assert the forfeiture 
or forbear to do so. The lessee not having drilled a well, could not 
set up a forfeiture as a defence to an action for rent. 

Cochran v. Pew, 159, 184 (1893). Lessee in oil lease covenanted 
to begin work within a certain time or to pay a rental until work is 
commenced. "The failure of the second party to make any one of the 
payments when due, or within ten days thereafter, will render this 
lease null and void, and not binding on either party." This does not 
make the lease void except at the option of the lessor. 

Wolf V. Gnffey, 161, 276 (1894). A lessee in an oil and gas lease 
agreed to complete one well within six months, or pay to the lessor a 
certain sum within three months thereafter as compensation for delay ; 
*' a failure to complete one well, or to make any such payments with- 
in such time, and at such place as above mentioned, renders this lease 
null and void, and to remain without effect between the parties.*' 
Lessee having made such failure, lessor, within six days thereafter^ 

1 See also, on the point that a forfeiture (1897); Barthy v. PhiUips, 179 Pa. 175 
clause 18 for the benefit of the lessor, (1897). 
Mathews v. People's N, G, Co,, 179 Pa. 165 


inthout making demand for payment, leased the premises to another 
persoix for a long term of years. This was an election by him to 
enforce a forfeiture and avoided the lease. 

Lynch v. Versailles F. Gas Co., 165, 518 (1895). Where time i» 
not stipulated as essential, and a forfeiture for non-payment of money, 
or other matter that admits of accurate and full compensation, is pro- 
Tided as a mere penalty, whose object is to enforce performance of 
another and principal obligation, equity will relieve against it, and will 
not permit it to be used for a different and inequitable purpose. 

An oil lease stipulated for rent payable for delay in putting down a 
well. No time was specified for tifie payment of this rent, and it 
accordingly fell due by operation of law at the close of each year» 
The lessee paid the rent for several years without drilling a well. 

He then began operations, and at large expense succeeded in obt)sdn- 
ing oil in paying quantities. When the rent fell due the lessee, by ao 
oversight, failed to pay it. Six days afterwards the lessor notified the 
contractor to take away the machinery, and on the following day 
declared his election to forfeit the lease. The lessee expended a con- 
siderable sum of money between the time when the rent was due and the 
time of the attempted forfeiture. Held, lessor's action had been neither 
prompt nor conscionable, and the forfeiture could not be enforced. 

Steinery. Marks, 172, 400 (1896). The lessor in an oil and gas 
lease will not be permitted to enforce a forfeiture for a delay of one 
day in the payment of rental, where by his acts and declarations he 
has misled the lessee into the belief that a forfeiture would not be en- 
forced for such a delay. 

-, Petroleum Co. v. Coal, Coke, & Mfg. Co., 89, 881, 

Tennessee. (1390). The defendant's grantor " leased " to plaintiff 
^^ for the term of ninety-nine years all of his mineral and petroleum 
interests, for the purpose of exploring for coal, petroleum, lead, etc., 
for mining, working, smelting, and rending the same." 

By the lease, the lessees bound themselves to pay ^' one-tenth part of 
the net profits of whatever may be discovered and worked in and upon 
said lands deemed advisable to be tested and worked by " the lessees, 
and they agreed ^^ to commence testing said property within three years' 

Under this the lessees were under no obligation to test or work unless 
they deemed it advisable ; there was therefore no consideration, and the 
leases were void. They were mere options based on no consideration. 

If, however, the contract be construed as binding the lessees to test 
within three years, that provision is a condition, and failure to comply 
therewith works a forfeiture of the lease. No other compensation was 
contemplated than that which would result from the discovery and 
working of the mines. The testing, therefore, was of the very essence 
of the contract, not only with respect to time, but also as to the 
thoroughness and certainty with which the mineral value of the land 
should be ascertained. 

The test required was such as would discover not only the existence 
of minerals, but their commercial value, considering their .abundance 
and accessibility. It should afford such information as a prudent in- 
vestor would desire, before expending money in development^ 

1 See comment on p, 148. 


Virginia ^^^ ▼. EUis^ 91, 297 (1895). A mining lease for ninety- 
nine years, " provided the lessee paid the rent," which was 
construed to be not a license, but a grant of a right and privilege, 
eould not be avoided for non-payment of rent, if that payment was 
hindered by the acts of the lessor. 

West Vijidnia Bowyer v. Seymour^ 13, 12 (1878). A provision 
^^ * in a lease of minerals that a failure to pay royalty 
for sixty days after it is due shall be considered an abandonment of 
the lease, is to be construed a forfeiture, and the lease will continue 
unless the lessor exercises his right of re-entry. The words ^' shall 
be considered an abandonment" are equivalent to ^^ shall be consid- 
ered forfeited," or *' shall be considered void." 

Ghiffey v. HukiU, 34, 49 (1890). W., on June 30, 1886, leased to 
defendant's assignor land for drilling for gas and oil, with a covenant 
on the part of the lessee to commence operations within nine months, 
and after that to pay $1.33 per month until work was commenced; 
'^ and a failure on the part of the said second party to comply with 
either one or the other of the foregoing conditions shall work an abso- 
lute forfeiture of this lease."- Defendant began to bore in May, 1889. 
A tender of the monthly payments made in October, 1888, was refused, 
but payment was accepted in January, 1889, and thereafter. On July 
11, 1888, W. leased to assignor of plaintiffs, who brought this action 
of unlawful detainer. 

Defendant's lease was held forfeited, because — 

1. There being no clause of re-entry, on failure of condition the 
lease became void as to lessee. 

2. W. being in possession for purposes of tillage, re-entry was un* 

3. He signified his intention of forfeiting the lease by making a 
lease to plaintiff's assignor. 

The receipt of rent from plaintiff could not act as a waiver after the 
declaration of forfeiture by executing the second lease. 

The action for unlawful detainer was a proper means of enforcing 
this forfeiture. 

Plaintiff's lease provided for boring a well within six months, and 
upon failure then for the payment of fifty cents per acre, payable within 
six months from the time of completing such well. The plaintiff did not 
bore a well, but tendered the money, and this saved a forfeiture. See 
also Hukill v. Guffey, 37, 425. 

ScJtaupp V. Hukill, 34, 375 (1890). F., on Nov. 6, 1885, gave to 
defendant an oil lease, with a clause pro\'iding for forfeiture for failure 
to drill a well or pay commutation. No well was drilled. Defendant 
paid up to Nov. 6, 1886. In 1888 defendant, by mistake, sent his 
lease to F., who by writing under seal accepted its return, and agreed 
that it might be cancelled as of Dec. 6, 1886. Having been subse- 
quently advise<i that this did not put an end to it, he returned it to 
defendant on May 20, 1889, as having been given up by mistake, and 
subsequently accepted rent from him. On May 2, 1889, F. leased for 
oil and gas purposes to plaintiff, endorsing on the lease, '^ this lease is 
to be taken subject to the E. M. Hukill lease." Held, t^e second lease 
was not an unequivocal declaration of forfeiture of the first. The 


endorsement saved to defendant the right to have the mistake, if it 
existed, corrected. 

Thonuu V. HukiU^ 34, 885 (1890). C. made an oil lease for twenty 
years to defendant's assignor, by which the lessee covenanted to begin 
operations within six months, or to pay S5.50 per month until the 
work commenced, and it was provided that a failure to comply with 
either of these conditions should work a forfeiture. Work under this 
lease was not begun for four years, and in the meantime C. made a 
second oil and gas lease to plaintiflf s assignor. 

Oral evidence was admissible to determine whether C. intended to de- 
clare a forfeiture. Holt, J. : ^^ In leases of this kind the law seems to 
be fairly well settled, that when a forfeiture for the benefit of the lessor 
is contracted for in case of default on the part of the lessee, before the 
lease can be regarded as at an end the lessor must by word or deed, 
Id some unequivocal way, manifest a purpose to treat the lease as for- 
feited. Otherwise the lessee would have it in^his power to make default 
for his own benefit, and thus escape the performance of one duty by 
wilfully failing to perform another. ... I do not understand Guffey v. 
Hukill to lay down a different doctrine, and read by the light of its own 
facts it does not profess to treat of leases generally, or to say that 
even in these cases the lessee in a proper case would be deprived of his 
remedy for relief from the forfeiture in a court of equity by the lessor 
executing a new lease to some third party. Therefore it becomes ma- 
terial to ascertain the purpose in that respect manifested by the lessor, 
when he executed the new lease. 

^^ The execution of the second lease cannot be taken as conclusive 
evidence o£ a purpose to declare the first one forfeited when its own 
terms show that such is not the purpose. But if silent on the subject, 
as this one is, can it not be shown that the lessor executed and deliv- 
ered the new lease to the lessee himself on condition that it was to 
be given back, if the first lessee objected ? ... In this case it is not 
to add or to take from the language, or to impair its legal effect, but 
to rebut the inference of a collateral purpose to declare a forfeiture 
which would otherwise be drawn." 

The lease to plaintiffs assignor was for two years, or as long there- 
after as gas or oil is found in paying quantities. Held^ the production 
of oil by defendant did not extend plaintiff's lease beyond -two years. 

Hukm v. Myersy 86, 639 (1892). M. leased to H. for twenty years 
a tract of land for the purpose of producing oil. The lessee cove- 
nanted ^' to commence operations for said purposes within one year . . . 
or to thereafter pay to said lessor twelve dollars a month until the 
work is commenced ; and a failure of the lessee to comply with either 
one or the other of the foregoing conditions shall work an absolute for* 
feiture of this lease." 

H. did not commence operations within the year. He paid the first 
month's rent on Nov. 16, 1886, before it was due, and M. signed 
a receipt therefor, in which he said, " I hereby agree to accept my 
rental hereafter quarterly." M. did not pay the rent quarterly, but on 
Dec. 25, 1888, H. drew an order on him for all rent that might 
be due, and M. paid thereon S288, and received from H. a receipt ''in 
fttU for rental on oil lease to Dec. 30, 1888." On May 18, 1889, 


H. paid $60, and got a receipt in faH to May 30. On Joly 27, 1889, 
H. leased the premises to S. Held^ there was no forfeiture. H. had 
waived his right to insist upon his forfeiture by his acquiescence in M/s 
way of paying rent, and M. was, upon payment of rent due, entitled to 
be restored to possession. 
-_. Sunday Lake Mining Co. v. Wakefidd^ 72, 204 (1888). 

*^^°* In an action for relief against the forfeiture of a mining 
lease for non-payment of rent, the answer alleged that the lessees had 
failed to furnish monthly statements of the ore mined, required by the 
lease; that they had committed waste ; that they were insolvent ; and 
that the property was in danger of being dismembered or destroyed by 
the creditors and unpaid workmen for the purpose of securing their 
debts. Held^ on demurrer, that all these matters were proper to be 
considered in determining whether relief should be granted. Demurrer 

Wealing v. KroU^ 78, 636 (1891). A mining lease provided for a 
forfeiture of the lessees' rights thereunder if &ey failed to woric for 
three weeks. Work having ceased for more than a year, in an action 
of trespass by lessees against lessor's agents, who had interfered with 
their possession, whether the lessor had consented to the cessation of 
work and waived the forfeiture was a question for the jury, the burden 
of proof being upon the lessees. 

E. By Abandonment and Surrender. 

At common law, abandonment by the tenant during the term, 
without the landlord's default, does not affect the tenant's lia- 
bility for rent. But such abandonment acquiesced in by the 
landlord amounts to a surrender, and is a restoration of the land- 
lord's occupancy. The abandonment of the lease — that is, the 
leaving of the premises with the intention not to return, or the 
relinquishment by the lessee of his rights under the lease without 
intention to resume them — may therefore be treated by the land- 
lord as a termination of the lease. 

Abandonment, being a question of intention, is to be determined 
by the jury from the facts. When there is an obligation expressed 
or implied to operate under the lease, the failure to do so either 
within the prescribed time, if there be a time prescribed, or within 
a reasonable time, will, if unexcused, amount to an abandonment. 

An abandonment differs, on the one hand, from a surrender, in 
that there is no expressed yielding up of the possession by the 
lessee ; it differs, on the other hand, from a forfeiture, in that it 
is based on an intentional relinquishment of rights by the lessee 
and not upon a breach of obligation. This distinction is, how- 
ever, narrow, being often the same thing looked at from different 


directions. And as has been pointed out in the last section, cases 
of abandonment have been treated as forfeitures. 

A distinct class of cases terminable by abandonment are 
those in which the demise is for such time as minerals are found 
in paying quantities. These, being words of limitation, fix the 
duration of the lease, and abandonment is tantamount to failure 
to find the minerals in paying quantities. If after abandonment 
the lessor encourages expenditure on the faith of the continuance 
of the lease, he will be estopped from setting up an abandonment. 

There may be a provision in the lease giving the lessee the right 
to abandon it. In the cases considered above there was no such 
right in the lessee ; his act created the right in the lessor. But 
here the abandonment is the lessee's right, and its definition is to 
be determined by the construction of the particular lease in 
which it occurs. Such an abandonment does not relieve the 
lessee of any obligations which have accrued prior to its date. If 
taken advantage of by the lessee, it must be set foi*th as a defence, 
and need not be negatived by the plaintiff in an action for rent. 
If there is in fact an abandonment, the failure to give notice, 
though provided for in the instrument, does not destroy the effect 
of the abandonment. And on the other hand a formal surrender 
by deed, if not accompanied by actual abandonment, will not 
operate as such. 

An independent class* of cases is composed of those in which 
the instrument creates a title which is inchoate and for the 
purpose of exploration only until the mineral (generally oil) is 
found. Upon the discovery of the mineral a perfect title is 
acquired. In the meantime the lease may be abandoned at any 
time before the search proves successful. Such contracts are 
treated as leases, and the abandonment works their termination, 
though it would be more scientific, perhaps, to regard this as the 
failure of a condition precedent to the vesting of the title. 

Licenses, personal privileges to mine, may be terminated at any 
time by abandonment. 

Mining leases may, of course, be terminated by express sur- 
render, but this subject calls for no particular discussion. 

Indian McDowell v. Hendrix^ 67, 513 (1879). Where a coal lease 

^ provides that if no coal is found, and the lease is abandoned 

for that reason, payments are not to be made; abandonment is matter 

of defeace, and need not be negatived by plaintiff in an action for rent* 


Iowa SeaUy y. Gregory^ 17, 109 (1864). Whether a license to 
mine has been abandoned is a question of fact for the jury. 

Van Mister v. Chicago & Van Meter C. M, Co., 88, 92 (1893). A 
coal lease gave the lessee the right to abandon the property in case the 
coal underlying the same proved unworkable by reason of its being too 
thin, bad roof, or for any sufficient reason which, in the judgment of 
the lessee, rendered it unprofitable to work the same. It was further 
provided that it was not the intention of the lessee to enter upon the 
surface of any of the lands covered by the lease, but to work the coal 
through the existing shafts and openings of a coal company then work- 
ing a lower vein, reserving, however, the right to use any part of the 
surface ^^ only in case of unforeseen contingencies which may arise, ren- 
dering it necessary and profitable to do so." Held, that in its deter- 
mination of the question whether the coal could be profitably worked, 
as fixing its right of abandonment, the lessee was not required to mine 
or prospect for coal under said land, except from the shafts and open- 
ings of the coal company. The reservation of the surface was a privi- 
lege to the lessee and imposed no obligation on him. 

Ceasing to operate the mine and removing his machinery and appli- 
ances was a sufficient abandonment, without a surrender of the lease 
or the cancellation of recorded mortgages of the leasehold. 
--. - . Porter v. Nbyes, 47, 65 (1881). Leases of coal lands for 

*^*'^' twenty-five years with the privilege of renewal were given 
in 1858 and 1859, with provision that there should be preliminary test- 
ing within one year, and that a rent of ten per cent a ton should be 
paid on all coal raised, and the same on a certain number of tons per 
year as a minimum, whether raised or not. Lessees, thinking mines 
not worth working, never went upon the lands, and in 1871 ceased 
paying rent. In 1879 lessors leased the lands to others. In the same 
year lessees assigned their interest, and the assignee brought a bill for 
an injunction against the later lessees. Held, owners had a right to re- 
gard the abandonment as final, and to relet the premises, and also that 
they were entitled to be made party defendants. 
j^ ^ East Jersey Co. v. Wright, 32 Eq. 248 (1880). Where 

•w eraay. ^ mining license is granted for the purpose of having 
lands explored and their mineral sources developed, and it contains a 
provision that if the licensee concludes to abandon digging ore he shall 
notify the licensor ; if the licensee, after making an opening in the lands 
and finding a large deposit of ore, does in fact abandon the enterprise 
because the ore is comparatively valueless, he will be held to have aban- 
doned the mine, although he gave no formal notice. 
Hew Tork l^^^on v. Allegheny G. Co., 122, 416 (1890), reversing 

s. c. 42 Hun, 61. F., by contract under seal, ^^ granted, 
leased, and demised " to plaintiffs certain premises, ^* with the exclu- 
sive right to dig, bore, and mine for, and gather oil and gases ... to 
have and to hold the same for the term of twelve years from this date, 
or as long as oil is found in paying quantities,'' lessee to give lessor one- 
eighth of the oil produced. 

This did not create an absolute lease for twelve years : '' as long as 
oil is found in paying quantities " are words of limitation, and fix the 
duration of the lease. The lessees had the right of possession so long 


M they in good faith were engaged in boring wells or testing the oil* 
producing capacity of the land. But where tiiey had tested the lands 
to their satisfaction and abandoned the search, and ceased to use the 
land, their right to occupy it ceased and the contract might be legally 
tem^iated by the lessor. 

iTania. ^^^ ^' Thompson^ S Penny, 267 (1882). The gran- 
^""^"^ tee of all the coal under a certain tract of land agreed 

to make search for coal within six months, ^' and if he found coal of 
sufficient thickness, quantity, and quality to justify opening and work* 
ing," to pay $500, $1,000 within eighteen months, and $2,000 a year 
thereafter, ^^ during the continuance of this indenture; and the failure 
to make search within the said time, and the failure to make such yearly 
payments within ten days, made upon second party or his assigns, shall 
be an abandonment of ttda grant, and the second party or his assigns 
shall have a right to abandon said lands and mining, and remove all 
bondings and fixtures. " He also agreed to pay a royalty on coal mined ; 
and further, it was agreed ^^that the payments of $500, $1,000, and 
|2,000, as aforesaid, when made, are to apply on the rent of coal first 
mined thereafter, and such yearly payments cea^e whenever the second 
party or his assigns abandon this agreement" 

Lessee's assignee mined no coal, but made annual payments regularly 
for nine years, to July, 1878. He then mined, and finally, in 1881, 
abandoned the mine. This action was for balance of annual payments 
due November, 1879. 

Held^ defendant must pay annual payments to time of abandonment. 
The fact that the amount already paid exceeded the royalty to which 
lessor would have been entitled if all the coal in the land had been mined 
ia no defence. ^* The defendants had the remedy in their own hands 
by abandoning the mine and removing their fixtures and machinery." 

Bistwick V. Coal Co.j 129, 592 (1889). A contract, executed by 
trastees who had the legal ownership of the coal but not of the surface, 
granted and conveyed all the coal under a tract of land, the grantees 
covenanting to mine and remove four thousand tons of coal yearly, or pay 
for the same as though mined. The contract also granted to the part^ 
of the second part ^' right of way through, over, and under said land, to 
transport coal from adjacent lands." It was provided also that the 
grantees, etc., ^^ shall have the right to abandon this contract, and 
yield op said coal mine and privileges at any time they shall determine 
in theur judgment that said coal is in quantity, quality, or condition no 
longer minable with economy and profit." At a certain date the 
grantees delivered to the grantors a deed of release and surrender of 
all the coal conveyed, and all the right, title, etc., of the grantees 
therein, but corUintted afterwards in the use of Hue way through the coal 
bed conveyed^ to coal operated by them on adjacent lands. 

The grantees were bound for the payment of the annual royalty, so 
long as they retained possession and use of the right of way, and the 
fact that all the coal except the ribs had been removed was no de- 
fence, the grantors having the right to have all the coal removed, the 
right of the surface owner not being in question. 

Riddle V. MeUony 147, 80 (1892). Plaintiff made a lease to G. for 
<»1 and gas purposes, ^^ for, during, and until the full term of one year 


next enBuing • . • and as long as gas or oil is found in paying qoan* 
titles or rental is paid." The lessee drilled a well within the year and 
found oil, but failed to produce it in paying quantities. He then 
assigned the lease to defendant, to whom after the expiration of the 
year plaintiff made the request that he drill the well deeper. This the 
defendant proceeded to do, and the plaintiff recognized his rights under 
the lease as still in force. The defendant failing to find oil in paying 
quantities in the well, abandoned it. He then proceeded to drill 
another well, and plaintiff brought trespass against him. Oil in pay- 
ing quantities was found in this second well. Plaintiff having after 
the expiration of the year encouraged and allowed defendant to ex- 
pend money and labor on the premises, on the basis of the continu- 
ance of the lease, was estopped from asserting that it was at an end. 
The only limitation then, upon defendant's right, was that he should 
proceed with reasonable diligence to operate or continue operations 
for the discovery and production of oil. 

BamJiart v. Lockwoody 152, 82 (1892). Lessees under a lease for 
eighteen years, dated March 1, 1878, agreed to go upon demised 
premises and operate the same for oil, and deliver to the lessor one- 
eighth of the oil obtained, and to commence a test well within forty 
days. Lessees did not take possession or carry out their agreement. 
They afterwards sunk a test well near the demised premises which 
was a failure, and which they abandoned, and nothing was attempted 
to be done towards the ^development of the property by the lessees 
until Dec. 18, 1889, when the property increased in value by reason of 
the development of others in the neighborhood. Held^ that the action 
of the lessees constituted a surrender of the lease ; their non-action 
during a period of nearly twelve years anaounted in law to an abandon- 
ment of any right they otherwise might have had. 

Venture Oil Co. v. Fretts, 152, 451 (1893). G. leased to R. ** for 
the sole and only purpose of mining and excavating for petroleum, or 
carbon oil, gas, or other valuable mineral or volatile substances," a 
certain tract of land for twenty years, the consideration of which was 
the one-eighth of the product. It was further provided : **The party 
of the second part covenants to commence operations for said mining 
purposes within six months ... on some one of the farms leased by 
said second party in this township, and when oil is found in paying 
quantities then second party agrees to commence operations within 
sixty days upon the next adjoining farm leased by second party, and 
so on until all lands leased in the township are tested to success or 
abandonment." R. began operations and drilled a well on another 
farm, but found neither oil nor gas. Concluding the territory to be 
worthless as oil land, he made no further effort to test it Six years 
later G. leased to F. R. was held to have abandoned his lease, and 
F.'s title prevailed. ^^A vested title cannot ordinarily be lost by 
abandonment in a less time than that fixed by the Statute of Limita- 
tions, unless there is satisfactory proof of an intention to abandon. 
An oil lease stands on quite a different ground. The title is inchoate 
and for purposes of exploration only, until oil is found. If it is not 
found, no estate vests in the lessee, and his title, whatever it is, ends 
when the unsuccessful search is abandoned*' If oil is found, then the 


right to produce becomes a vested right, and the lessee will be pnH 
tested in exercising it in accordance with the terms and conditions of 
his contract." 

Bummer v. HiUside C. & I. Co., 160, 483 (1894). Williams, J. : 
**The appellant cites the Venture Oil Company v. Fretts, 152 Pa. 4^1 ; 
McKish V. Stone, 152 Pa. 457, and other cases in which oil leases were 
considered and the rights of the lessors and lessees defined. A lease 
granting to the lessee the right to explore for oil and, in case oil is 
foand in paying quantities on the leased premises, to drill wells and 
raise the oil, paying an agreed royalty therefor, has been held to con- 
vey no interest in the land beyond the right to enter and explore, 
unless the search for oil proves successful. If it proves unsuccessful 
aad the lessee abandons its future prosecution, his rights under the 
lease are gone. So it might be with a similar lease of lands supposed 
to contain coal. If the lessee entered, explored the leased premises, 
and finding nothing gave up the search, he would no doubt be held to 
the same rules, upon the same provisions in the lease, as were applied 
in the cases cited. The difference in the nature of the two minerals, 
and the manner of their production, has, however, resulted in consid- 
erable differences in the forms of the contracts or leases made use of. 
When oil is discovered in any given region, the development of the 
region becomes immediately necessary. The fugitive character of oil 
and gas, and the fact that a single well may drain a considerable ter- 
ritory and bring to the surface oU that, when in place in the sand-rock, 
waa under the lands of adjoining owners, makes it important for each 
land-owner to test his own land as speedily as possible. Such leases 
generally require, for this reason, that operations should begin within 
a fixed number of days or months, and be prosecuted to a successful 
end or to abandonment. Coal on the other hand is fixed in location. 
The owner may mine when he pleases regardless of operations around 
him. Its amount and probable value can be calculated with a fair 
degree of business certainty. There is no necessity for haste, nor 
moving pari passu with adjoining owners. The consequence is that 
coal leases are for a certain fixed term, or for all the coal upon the 
land leased, as the case may be. The rule of Venture OU Co. v. 
Fretts, supra, is not capable of application to the lease made by Cal- 
lender to Meredith in 1828, for several reasons : (1) The Callender 
lease is in effect a sale of all the coal in the leased premises, and con- 
sequently a severance of the surface therefrom. (2) It is for one 
hundred years. All idea of haste in development or operating is ex- 
cluded by the terms of the instrument, and the time for commencing 
the work of mining is left to the discretion of the lessee. (3) The 
consideration of the grant was not the development of the mineral 
value of the land, but the price fixed by the agreement and actually 
paid to the lessor in money." 

Hooks v. Forst, 165, 238 (1895). Where the lessees under an oil 
and gas lease have an absolute right to rescind the lease at any time, 
and such lessees never enter into possession of the demised premises, 
the rights and privileges under the lease may be surrendered by parol. 

An oil and gas lease gave the lessor no right to rescind, but pro- 
vided that the lessees ^' shall have the right at any time to surrender 



up this lease, aiid be releas^ from all money dae and conditions un- 
fulfilled." The lessees did not absolutely covenant to develop the land, 
but only agreed to bore or pay one hundred dollars per month if they 
did not The lessees never entered into possession of the land. 

The evidence tended to show that after two monthly payments had 
been made, two of the three ' lessees asked the lessor for time on tlie 
tliird monthly payment, and that it was agreed between thein that the 
time should be extended three weeks, and if the money was not then 
paid, they would surrender the lease. At the end of three weeks the 
money was not paid, and one of the lessees told the lessor that he 
should go on and lease to any one, and that the lease would be re- 
turned. The lease was never formally redelivered. Sixteen months 
afterwards tJie lessor leased the premises to other parties. 

Heldj that the evidence was sufficient to establish a rescission ci the 
lease. In such a case the tender of the monthly rental after the rescis- 
sion had been consummated could not revive the lessees' rights or 

Bartley v. PhiUips, 165, 825 (1895). Hartzell leased to plaintiff a 
tract of land for oil purposes for a term of ten years. By the terms 
of the contract plaintiffs were to commence work within thirty days, 
and to prosecute it ^^ with due diligence until completion or abandons 
ment." In an action of ejectment to recover possession of the land 
the question of abandonment should have been submitted to the jury* 
^^ Abandonment is a mixed question of acts and intention." ^^ Whether 
the evidence on the part of the plaintiffs showed abandonment by them 
did not depend exclusively on the length of time that operations had 
ceased, but also on the intention, and that again was largely depend- 
ent on the agreement and understanding of the parties." 

The parties might agree as to what should constitute due diligence 
and abandonment, and parol evidence was admissible to prove such an 
agreement or understanding. 

No one can take advantage of abandonment but the lessor or the 
one succeeding to his rights. *^ As against any but the grantor an 
abandonment is not complete until the statutory period of limitation 
or the end of the term granted, and possession may be resumed by the 
grantee at any time previous." * 

. . Cowan V. Radford Iron Co.^ 83, 547 (1887). An agree- 

**""** ment by which the owner of land sells to another all the 
minerals under the land, with the usual mining rights and privileges, 
which are described to be the right to enter at any time with work- 
men, machinery, etc., and mine and carry away the coal; to use so 
mneh of the surface as is necessary for the operations ; to erect the 
necessary buildings, £lnd construct roads and to use water ; and the 
grantee agrees to pay quarterly, fifteen cents a ton for all iron ore so 
taken, and is given the privilege of removing his machinery, buildings, 
fixtures, and improvements at any time, — creates a tenancy at will. 
The abandonment of the work and the failure to mine and pay rent 
is a termination of the lease by the lessee, and the lessor is no longer 
bound thereby. 

1 See alflo Bartley v. PhVlips, 179 Pa. 175 (1897). 


Hodgson v. Perkins^ 84, 706 (1888). An agreement by which the 
owner of a farm bargained and sold the privilege of digging and work- 
ing for gold thereon for a share of the product, reserving the right to 
cultivate and use the land, provided he did not molest or interfere with 
tiie lessees in searching and working for gold or other metals, the 
lessees to have and hold the land so long as they may deem it worthy 
of searching and mining for gold or other Toetals^ creates a persontd 
privil^e which is not assignable, and is t^minated by abandonment. 
West Virginia -S?we«ton« Coal Co, v. BeU, 38, 297 (1893). Where a 
gima. ^^^j^ ^ executed of all the coal, timber, and mineral 
privileges on a certain tract for ninety-nine years, the lessee agreeing 
to pay ten cents a ton for coal mined and shipped, and for all such 
timber as said lessee may think merchantable, which may be cut, 
•hipped, sawed, or moved from said leased preraiseB, fifty cents per 
one tfaoasand square feet of one inch thickness, and a proportionate sum 
for other thic^esses, or twenty-five cents per tree, no time being fixed 
for the commencement of operations, the lessor has the right to pre- 
sume tiiat operations will be commenced in a reasonable time. If 
nothing has been done under this contract for a period of seventeen 
years, the lessor has the right to presume the contract has been 
abandoned, and the lessee or his assignee cannot, after having been 
goiity of such laches, restrain the lessor from cutting and using, or 
removing the timber. 

Where it is i^parent that the lease was entered into under a mutual 
mistake as to the existence of a workable vein of coal in the land, and 
thftt the timber contract was induced by the belief that the coal did 
exist, and to aid the lessee in his mining operations, said contract 
shoold be rescinded, not only as to the coal but as to the timber. 






L In Mines of the PrecionB Metals. 
IL In Minerals in the Beds of Navigable 

III. In Minerals under Public Highways. 
XV. In Minerals contained in Lauds 

taken by Right of Eminent Do- 
' main. 

A. Property in the Ifineials apon or 

under the Lands appropriated. 

B. Mine-owner's Rights, and Re- 

strictions upon him by Reason 
of the Exercise of the Dom- 
inant Right. Damages for the 

The property of the sovereign in minerals contained in pttblic 
landy and the title thereto of the grantees of the State, will be 
reserved for the next chapter. Here only its rights to minerals 
in private land will be discussed, except that for the sake of 
convenient classification the beds of navigable streams will here 
be included. 

I. In Mines op the Precious Metals. 

Whether the right of the king at the common law to all mines 
of gold and silver vests in the State as the successor of the king 
may in many parts of the United States be still considered a 
question. The best-considered case is that of Moore v. SmatVj 
17 Cal. 199 (1861), in which Field, C. J., rejected the doctrine as 
inapplicable to American institutions, holding that the regalian 
rights of the British crown were personal prerogatives and not 
an incident of sovereignty. This case overruled Hicki v. Bell^ 
3 Cal. 219 (1853), and the other California cases which had 
followed it. The doctrine of this case has not been universally 
accepted, however. In Gold Hill Q. M. Co, v. /«A, 5 Oreg. 104 
(1873), the court, without considering the question, refers to the 
principle as conceded '^ that mines or precious metals belong to 
the eminent domain of the political sovereign." The prerogative 
right to royal mines was formerly asserted in New Jersey, as 
appears by the opinion of Sir Robert Raymond, Attorney-General, 


and Sir Philip Yorke, Solicitor-General, upon application of (lov- 
emor Burnet, Dec. 12, 1722. (Forsythe's Opinions, 158 ; Note 
to 30 N. J. Eq. 828.) In Shoemaker v. United States, 147 U. S. 
282 (1893), it was decided that, bj the grant of Charles I. to 
Lord Baltimore, all veins, mines, and quarries of gold, silver, 
gems, and precious stones passed to. the grantee, he yielding to 
the king one-fifth of the gold and silver found from time to time ; 
the confiscation of the proprietary's title in 1780 vested the same 
in the State of Maryland, which also became entitled to the king's 
one-fifth by the Revolution. And the act of cession of 1791 
passed the title to gold mines in the District of Columbia to the 
United States. 

It is not considered necessary to do more than refer to the few 
cases in wliich the above title has been discussed. Suffice it to 
say, that should it ever assume importance, it is extremely likely 
that the rule laid down by Judge Field, supra, would be followed ; 
t. e, such rights are mere personal royal prerogatives, and have no 
existence in this country, as being opposed to the character of our 
institutions. The question is abstractly of small practical impor- 
tance. Since the title to most, if not all, of the land in the United 
States is derived from grants by the sovereign, the right to min- 
erals therein is governed by reservations in those grants or by the 
organic law of the States. In the absence of a reservation to the 
sovereign, the owner of the land is the owner of all the minerals 
therein. The question of this right of the sovereign to mines in 
the public domain, or to mines reserved in land that was once the 
property of the sovereign, is a distinct question not involving any 
question of regalian right. 

In New York the State's right to mines of gold and silver and 
to certain other mines is asserted by the legislature.^ And in 
Michigan the property of- the State in the precious metals is de- 
clared, with the provision that rights arising therefrom shall not 
be enforced against citizens owning the fee of the soil which con- 
tains them.^ 

11. In Minerals in the Beds of Navigable Streams. 

The beds of navigable rivers below low-water mark are the 
property of the State, and consequently so are the minerals found 

> Rer. Stats., pt. 1, ch. 9, tit. IL, sees. * 2 How. Ann. Stats., sees. 5475, 547S. 
M, p^ SIS. 

- II 


therein. In the absence of a grant by the State of the right 
to take theniy any one who appropriates them is, as against 
•rery one except the State, the owner. They are like the fish in 
the water, the property of him who takes them. 

But as against the State, one who appropriates these minerals, 
without a grant thereof, is a trespasser. He may at the suit of 
the State be enjoined from taking them, or be compelled to re- 
spond in damages. The title to the soil or the minerals under 
navigable riyers may, howerer, be granted by the State ; ^ but it 
will not pass under a grant of the land upon the shore^ and a 
grant of a portion of the bed of a stream will not carry the right 
to mine under an island within its boundaries. 


tT II- VI ai- «• Coasaw Mi Co. v. South Carolina^ 144, 660 (1892), 

umcea states, j^ffirming s. c. 47 Fed. 225. By act taking effect 
March 1, 1870, the State granted to a certain person the right for 
the full term of twenty-one years to dig, mine, and remove phosphate 
rock and phosphatic deposits from the bed of the navigable streams 
and waters within the jurisdiction of the State. For this privil^e 
the grantees were to pay a license fee of five hundred dollars and a 
royalty of one dollar a ton. The Coosaw Mining Company suc- 
ceeded* to all the rights given by this act. 

On March 28, 1876, the legislature of South Carolina passed an 
act '^ to settle definitely the period at which returns shall be made of 
phosphate rocks and phosphate deposits dug and mined in the beds 
of the navigable streams and waters of the State of South Carolina, 
and the royalty which shall be paid thereon, and also to fix the terms 
on which this act may be accepted by the parties named therein." 
This act, after reciting differences as to the times and manner in 
which returns should be made and royalty paid, makes definite pro- 
viBions on the subject, and then provides ^'that the said Coosaw 
Mining Company, on accepting the terms of this act within ten days 
from the passage thereof shall thenceforth have the exclusive right to 
occupy and dig, mine and remove phosphate rock and phosphatic 
deposits from all that part of the said Coosaw River above men- 
tioned, so long as and no longer than they shall make true and faith- 
ful returns . . . and punctually pay the royalty,'* etc. 

The mining company under this act acquired the exclusive right, 
not perpetually, but only for twenty-one years from March 1, 1870. 
This construction results both from an application of the rule requir- 
ing public grants to be favorably construed for the government, and, 
independently of that rule, from the legislative intent as disclosed by 
the language of the statutes. 

1 Pennsjlrania, Act April 11, 1848, June 9, 1891, ch. 4043, p. 74; Ad "Mmf 

P. L. 533; Act March 24, 1849, P. L. 30, 1893, ch. 4179, p. 113; Soath Carolina, 

285 ; Act April 16, 1856, P. L. 365 ; Act Civ. Stat. Laws, 1893, sees. 87-208 ; Crim. 

April 18, 1864, P. L. 437; Florida, Act Stats. 1893, sec. 515. 


Florida. ^^^ ^* ^^^ -Kw^ Phosphate Co.^ 27, 276 (1891). A 
bill in equity alleging that a certain stream within the 
State iB, in fact, navigable for the purposes of public commerce with-* 
out a direct averment that the State is the owner of the bed of such 
stream or of the deposits therein, does not allege the title or right of 
the State with sufficient certainty as to warrant the granting of an 
injunction to restrain the removal of phosphatic or other deposits 
therefrom. Demurrer sustained on ground of insufficiency, uncer* 
tainty, and vagueness. 

^'The importance of a direct averment of a present title or owner* 
ship in the State to the bed of the stream in question becomes further 
apparent when it is considered that even though the State does, by 
virtue of her sovereignty, own and control the entire beds and all 
deposits therein of all streams within her borders that are, in fact, 
navigable by the public, in the conduct of useful commerce thereon, 
whe^er the waters of such streams be salt or fresh, and whether the 
tides of the sea ebb and flow therein or not, — a rule that we are of 
opinion should obtain here upon the great weight of the American 
aathorities, — yet the proprietary rights of the State therein, prior to 
the time of the filing of the bill, may have been granted away by 
one or the other of the sovereignties, — Spain and England, — to 
both of whose dominions belongeid at different periods the territory 
now known as the State of Florida, to say nothing of the possibility 
of the existence of a grant anterior to the bill by the State herself, 
if it should be found that through her legislature she had the power 
to make such grant." 

State V. Black Bioer Phosphate Co,, 32, 82 (1893). The act of 
Dec 27, 1856, known as the Riparian Act of 1856, vested the title 
to lands* covered by water of navigable streams to the line of the 
channel in the riparian ownera, and gave them the right to build 
wharves, to fill in and to erect warehouses. This act did not confer 
any other rights in or to the submerged land, except those expressly 
conferred by the act. Consequently it did not give riparian owners 
the right to take phosphates out of the bed of navigable waters 
between their land and the channel. 

Raney, C. J. : ^^ At the time of the passage of our riparian act the 
navigable waters of the State and the soil beneath them, including 
the shore or space between high and low water marks, were the prop- 
erty of the State, or of the people of the State in their united or 
sovereign capacity, and were held not for the purpose of sale or con- 
version into other values or reduction into several or individual 
ownership, but for the use and enjoyment of the same by all the 
people of the State for, at least, the purposes of navigation, and 
fishing, and other implied purposes ; and the law-making branch of 
the government of the State, considered as the fiduciary or represent- 
ative of the people, were, when dealing with such lands and waters, 
limited in their powers by the real nature and purposes of the tenure 
of the same, and must be held to have acted witii a due regard for 
tiie preservation of such lands and waters to the uses for which th«y 
vere held." 

The aets of June 7, 1887 (eh. 8826), and Jane 9, 1891 (cb. 4048), 


permit the taking of phosphates from the beds of navigable waters^ 
and prescribe the terms and conditions on which they may be taken ; 
these statutes apply to riparian owners falling within the provisions 
of the act of 1856. 

Brandt v. McKeever^ 18, 70 (1851). A grant by 
ennsy vania. ^j^^ State of a portion of a bed of a river under a 

statute authorizing the issuing of warrants vesting the ^' right to dig 
and mine for iron, coal, limestone, sand, and gravel, fire clay, and 
other minerals," does not pass the soil. This and the sand deposited 
there by the cuii'ent belong to the State, and the grantee could not 
maintain trespass against one digging and taking away such sand. 

Solliday v. Johnson^ 38, 380 (1861). Stones taken from the bed 
of the Delaware, a public navigable river, belong to him who gathers 
them. In an action against one who has carried them away, it is not 
a valid defence that they are the property of the State. 

Wyoming Co, v. Frice^ 81, 156 (1876). Land acquired by the 
Commonwealth under the legislation providing for the construction 
of the Pennsylvania Canal, vested absolutely in fee in the Common- 
wealth and its grantees. A riparian owner had no interest or title 
therein or in the coal under the canal. 

A. occupied a colliery adjoining the land of B., and mined over 
his line into B.'s land. A. then agreed to pay B. for the coal mined, 
and all that he might mine for eight months thereafter. B.*s land lay 
on both sides of the canal, and A. mined under the canal between 
B.'s lots. Held^ that the relation of landlord and tenant did not 
exist between A. and B. so as to prevent A.'s denying B.'s title to 
the coal under the canal. 

Fenn, Co. v. Winchester, 109, 572 (1885). Act of April 11, 1848, 
provided for application, survey, and grant of a quantity not exceed- 
ing one hundred acres of the bed of any navigable river, the war- 
rantee to have the right to dig and mine for minerals. 

This does not give to the patentee the right to mine under an island 
within the boundaries of his grant, which, under prior existing laws, 
was subject to application and sale. 

A subsequent grantee of such an island may maintain ejectment 
against patentee for so much of said island as was above low-water 
mark at date of application and survey of said patentee. 

Gilchrist's Appeal, 109, 600 (1885). The city' of Wilkes-Barre is 
bounded on the northwest by the low-water mark of the Susquehanna 
Eiver, while the borough and townships on the opposite side of the 
river are likewise bounded by low- water mark thereon. After the 
erection by the Commonwealth of said municipalities the coal beneath 
the bed of the river was conveyed by the Commonwealth to private 
parties. Held, that such coal cannot be taxed by the city of Wilkes- 
Barre, it not being within the limits thereof. 

« *!. o u ^^^^ V- Gu^^ Co., 22, 50 (1884). Title to soil 

Sontn Carolina. .^ ^^^ navigable streams in which thfe tide ebbs and 

flows remains in the State, and does not pass under her grant of the 
superjacent land. A grant by the State of the lands on the shore of 
the navigable tidal channel gives title only to high-water mark. The 
State holds the beds of the channels of her tidal navigable streams 


for the public use of her citizens. Such property may be. disposed 
of by an act of the legislature, but may not be granted by her offi- 
cers as '' vacant land." The fact that the State has granted the 
^ right to another corporation to dig and mine for phosphate rock in 
I these streams does not prevent the State from bringing this action to 
assert her title to the soil. 

The value of the phosphates taken by the defendant corporation 
from the soil of the State should be estimated at the value of the 
phosphates, less the amount defendant has added to their value by 
their removal and preparation for market, defendant having acted 
under an honest but mistaken belief in its right to these phosphates. 

III. In Minerals under Public Highways. 

Where the title to the roadbed is in the State or the municipal* 
ity, the title to the minerals therein or thereunder is likewise in 
the State or the municipality. But if the public have only the 
right of passage, and the title to the land subject to this is in the 
adjoining owner, the property to the minerals is in such adjoining 
land-owner, subject only to the obligation not to interfere with 
the rights of the public. 

This last statement is equally applicable to private ways. The 
owner of the right of way has no property in the soil or the min- 
erals therein. These belong to the owner of the servient tene- 
ment, subject only to the obligation of surface support of the road. 
When the owner of land dedicates streets thereon to public use, 
reserving therefrom the minerals, and subsequently conveys lots 
described as bounding on such streets, the grantees succeed to the 
right to the minerals which was possessed by the original owner. 
Whether the stone, gravel, and soil excavated from such a high- 
way may be used at other points for the construction and repair 
of the road has been questioned, but the general opinion is that 
such a use is authorized.^ 

United States Lyman v. Arnold^ 5 Mason, 195 (1828) C. C. D. 

 R. I. A liberty granted in a deed " to dig a canal 
tbroagh the grantor's land " does not include as an incident the pro- 
prietary interest in the soil when dug up and removed. 

^ In Kaosas, cities may by contract dis- by act April 13, 1894, 90 O. L. 149, tbe 

pose of the right to mine beneath the owners of land over which a highway 

streets, sabject to the daty to make com- passes may mine thereunder with the con- 

peuation to owners of private property sent of the manidpal aathorities, apon 

for injnriee done by the operations. Kan- giring security. 
M Gen. Stats. 1889, sees. 3840-2. In Ohio; 


Story, J. : ^' If the use of a thing is granted, whatever is necessary 
for the enjoyment of such use or for the attainment of such use is 
by implication granted also. But if it be not necessary, but may be 
convenient only, it is not granted. So, too, grants are to be con- 
strued according to the subject-matter and the natural presumptions 
arising from their terms, and thus to render them expositions of 
rational intentions. If a contract is made allowing a person to dig 
coals or turf in another's Und, the law presumes that the coal or turf 
is to belong to the grantee. ... If he had no interest in the thinga 
for the labor bestowed upon it he could have no recompense, and the 
grant as such would be utterly worthless and nugatory. . . . Where 
a highway is made over another's land, the soil still remains in the 
owner subject to the easement. . . . The mere fact that a person 
having a grant of a privilege, servitude, or easement in another's 
land bestows his labor upon the soil, or separates and gives it value 
tbereby, constitutes no sufficient ground to infer a change of property 
in the soil, for such labor is bestowed in order to enjoy such privi- 
l^e, sei*vitude, or easement." 

The principal franchise or servitude is the canal, of which there 
nay be the most perfect enjoyment without the ownership of the soil 
taken out. That may be a convenience, but is not necessary, and 
therefore not incident to the grant. 

Oe da ^^^^^ ^' -^^^^' ^^' ^^ (1856). A gift of the right of 
orgia. ^^^ .g ^^^ ^ g.£^ ^^ ^^^ earth and other minerals which may 

exist within the boundary lines of the way. The owner of land upon 
which was a quarry gave the city a right of way for a street To 
cut out and take the rock and use it for macadamizing streets amounts 
to waste, and may be restrained by injunction* 

^^ Matthiessen & Hegeler Zinc *Co. v. La SalU^ 117, 411 

^^^ • (1885). A party owning city lots, has no right to make a 
subterranean passage from one to another through the underlying soil 
of a public street, the fee of which is not in him, but In the city to 
the use of the public, in order to mine and remove minerals, even 
though no injury may thereby result to the street as such. 

Union Coal Co. v. La Salle^ 136, 119 (1891). Where the fee 
simple of the land covered by streets is in the municipality, the title 
to underlying minerals is also in the municipality, which may maiiH 
tain trespass against any person renK>ving snch minerals without its 
consent, although no injury is done to tiie street. 

Bnndy v. CatiOy 61 Ap. 209 (1895). The public have an ease- 
ment in the soil of a highway, not only for travel, but for using it in 
a reasonable and proper manner, to keep the road in repair and im- 
prove it. Gravel may be taken from one part of a highway and used 
to repair another part, regardless of the ownership of abutting lands. 
Den Moines v. HaXl^ 24, 234 (1868). Under the law of this 
^^^' State the laying off and recording of a town plat vested in 
the corporation the fee simple of the streets thus dedicated to public 
use. In such a case neither the original proprietor nor his grantee 
lias any right to deposits of coal within the limits of the streets, and 
the corporation may maintain an action against him for coal mined 
and taken by him from beneath the same. 


Tousley v. Galena M. & 8. Co., 24, 828 (1880). The 
owners of a tract of land on which a city was located filed 
a plat in accoixiance with the statutory requirement, and dedicated 
the streets and alleys to public use, but reserved to themselves all the 
minerals under the surface of such streets and alleys. The lots were 
sahsequently conveyed by general warranty deeds without reservation 
or condition. Held, these conveyances passed the grantor*s title to 
the middle of the street, and consequently passed the minerals. The 
grantor was not entitled to an injunction against mining und^ the 

^^ HawesvUU v. Hawes, 6 Bush, 232 (1869). Where 

° ^' the aboolate title to the streets and not a mere easement 
for the use of the public is vested in the trustees of a town, such 
trustees own the coal under the surface of the streets. If that coal 
has been mined and removed by the lessee of the heirs of the indi- 
vidual who gave the land for the streets to the town, Uie trustees 
may waive the tort, and sue the said heirs for the rental received 
as money had and received. 

-m, . St. Anthony FaUt Water Power Co. v. Kin^ Bridge 

Hmnesota. ^^^ g^^ ^g^ (1876). Plaintiff dedicated to public use 

as a highway, a strip across its land, connecting a street with a bridge 
which the city of M. contemplated building. The defendant made a 
contract with the city to build the bridge, and entered into an agree- 
aient with the plainti^ by which the latter agreed that the defend- 
ant might take all the stone which it might need in constructing the 
bridge from the plaintiff's land, for which defendant agreed to pay 
at a certain rate per perch for stone taken irrespective (so found the 
Jury) of the part of the land from which the stone was taken. 

Heldf the plaintiff might on this contract recover as well for stone 
taken from the dedicated land, and which it was necessary to remove 
for the purpose of placing the bridge, as for that taken from the 
undedicated land of plaintiff. In the absence of contract the de- 
fendant would have been entitled to use the rock which it was neces- 
saiy to remove in order to make a place for the bridge. Upon the 
dedication of land as a highway the public acquires the right to re. 
Bove and use the stone therein in the construction of the highway. 
The defendant, however, had not the right to ose this withMMit the 
authority of the municipality. This auSiority was implied, so far 
as indicated above. 

j^^ IHend v. Porter^ 50 Ap. 89 (1892). Plaintiff having 

^^ sunk a shaft within the linee of a city street, sold the 

same with a license to take minerals fi'om adjacent lots. In an action 
for the parchase-money, it was held he could not recover becaose .— 

1. **^ The street having been dedicated to public use as a thorough* 
fare, no private party (not even the city itself) had any anthority or 
right to nse it for any other purpose." 

2. The maintenance of the shaft was a nuisance, and the contract 
was void as iatendlsg the performance of an act forbidden by law« 

Snoddy v. Bolen, 122, 479 (1894). The owners of a tract of land 
M4 tlMflttine off into lots, streets, and alleys, and dedicated the streets 
and alleys by a deed to the county, which excepted '* the right to ail 


valuable minerals in said land, which we hereby reserve, together 
with the right to mine the same." The lots were subsequently oon-> 
veyed by number, without reference to the minerals underlying the 
streets. The lot-owners were held to be entitled to the minerals 
under the streets. The rule is that a conveyance of land' bounded 
upon a public street carries the fee to the middle of the street, unless 
a contrary intent is clearly expressed. The rule is not changed by 
the fact that the minerals under the street were excepted from the 
grant to the county. 

lY. In Minerals contained in Lands taken bt Eminent 


A. Property in ike Minerals upon or under the Lands 


Where land is taken by a railroad or similar company, the 
company has only a right of way. It has no property in the 
minerals below the bed of the road, but it may remove and use 
the stone necessarily excavated in making the bed of the road. 

Whether such a company may go further and excavate stone 
upon the right of way, to repair the road, is in dispute. The 
better opinion seems to be that the company has no such right. 
Its right is a right of way, and the soil and minerals therein still 
belong to the owner of the land, who may excavate them, pro- 
vided he leaves sufficient support for the road.^ 

Smith V. Halhway, 124, 329 (1890). The grant of a 
*"*■ right of way to a railroad company being the grant only of 
an easement, the owner of the fee remains the owner of springs, 
streams, and minerals. He may not interfere with the free use of 
the right of way, but subject to this use he may make all lawful use 
of the land. 

Kelly V. Donahoe, 2 Mete. 482 (1859). The condem- 
en uo y. ^g^^i^j^ ^f jj^,jj| y^j ^ turnpike company invests the com- 
pany only with the right to use the land for the purposes of the road. 
Such a company having, by its charter, the right to make such exca- 
vations, fills, and embankments as the proper construction of the 
road, according to its prescribed grade and width, renders necessary, 
has, as incidental to this right, the right to quarry and remove stone 
and earth from one point to another within the lines of the road, and 
fi*om the lands of one person to that of another. But it has not the 
right to the quarries and soil under the road for the purpose of repair- 

^ In Nevada it is unlawful to mine rokd without the company's coDMOt. Gei». 
nnder or npon land belonging to a rail- Stats. 1885, sec. 887. 


ing it. "The proprietor retaiDS the, exclusive right to the land, and 
to all mines, quarries, springs of water, etc., and the right to use the 
same for every pui'pose not inconsistent with the public right of way, 
and with the rights and franchises of the corporation." 
-^^ Evans v. Haefner^ 29, 141 (1859). When land is taken, 

by a railroad company under right of eminent domain, 
the minerals found above the grade of the road, whose removal is 
necessary for the construction of the road, belong to the company ; 
those below the bed of the road, whose excavation is not necessary, 
remain with the owner of the soil. 

ivania. Stokely V. Bridge Co.^ 5 Watts, 546 (1836). An 

enxuy vania. incorporated turnpike company has the right to dig 
stone, clay, and gravel within the limits of the road for improve- 
ment and repair, and is not thereby subject to an action by the owner 
of land. 

Lyon V. Gormley^ 53, 261 (1866). One who builds an underground 
railroad through the land of another, under the provisions of the 
Lateral Railway Act, does not gain a property in minerals displaced 
by him in the opening of the road. He only gets a right of way 
which becomes a servitude on the land, but does not divest the owner 
of his title to the minerals. 

B* ItETie-owner^ % Rights, and Restrictions upon him by Reason 
of the Exercise of the Dominant Right. Damages for the 

When land is taken by right of eminent domain, the owner of 
the minerals owes surface support to the owner of the right 
of way, and also support of such structure as the company that 
exercises the right may be entitled to er^ct, — as a railroad or 
bridge, — together with such burden of travel and means of trans* 
portation as may at any time be placed thereon. 

He may not mine under it so as to endanger the use of it by 
the road-owner.^ And if he does so, or threatens to do so, he 
may be enjoined. This obligation of the owner of the minerals 
may, however, be altered or released by contract with the road- 
owner, but not by a contract between the owner of the minerals 
and the owner of the surface. 

The owner of the minerals is entitled to damages for the tak- 
ing of a right of way over the land. If the ownership of the 
minerals is distinct from that of the soil, the right to damages is 
distinct. These are to be measured by the difference in value as 
mining land if there is not a severance, as a mineral estate if 

^ In Nevada he may nol mhio at all without the wmgtanfs consent Gen. Stata. 
1885, aec. 887. 


there is, before and after the taking. This value is to be arrived 
at by a consideration of all the circumstances which determine 
the amount of support required. The specific value of the miner- 
als is not the measure : it is the depreciation in the market 
value. Therefore the amount of support needed, the probable 
length of time and the possible danger, are elements that enter 
into the calculation of damages to the extent that they may affect 
the market value, but not otherwise ; and this value as mining 
property includes advantages from the internal arrangement of 
the mine and the appliances therein provided, as well as trans- 
portation facilities. But where the mineral is as yet undeveloped, 
the fact that the land-owner when he opens his mines will be 
put to additional expense and inconvenience is not a subject of 

' The uncertainty of the value of mining land does not deprive 
it of a value. A. prospect may have a market value, and expert 
evidence is not inadmissible because founded on it If the company 
exercising the right of eminent domain releases the owner of the 
minerals from the right of surface support, this fact must be 
taken into consideration in determining the damages, bat the 
company is not bound by such a release by the owner of the sur- 
face to the owner of the minerals. 

Mining claims on the public domain are liable to be taken by 
right of eminent domain like any other property, and in somo 
States (Colorado and Wyoming) there are special statutory pro- 
visions for their condemnation. But they are not subject to rights 
of way under the provisions of- U. S. Bev. Stats. 2477, which are 
applicable only to unappropriated land. 

In the condemnation of a ^^ claim '' on the public domain, the 
owner may prove its value for town-lot purposes or as a mining 
claim, but not as both. The fact that title to land has been 
acquired under the mining laws of the United States is not 
evidence that it contains valuable mineral deposits. 

¥¥«!♦ A a«H.«. Montana By. Co. v. Warren^ 137, 848 (1890), 

unttea states, ^^fflrming s. c. 6 Mont. 275. A railroad took for 

its roadway a part of a patented mining claim. Adjoining this 
another daim, which baud been developed and proved to contaip a 
vein of great value. The claim in question had been developed so 
far as to indicate that possibly, perhaps probably, the same vein 
extended through its territory, but this could not be affirmed as a 
fact proved. The testimony of persons who knew the land and its 


surronndiiigey as to their opinion of the value of the land, was admis- 
sible to show the damages of the owner thereof. A mining prospeet 
nay have a market value. Its nncertainty the rfiilroad cannot take 
advantage of. 

^-^^ Twin Lakes H. G. M. S. v. Colo, M. By. Co.^ 16, 1 

^^*'*^*^" (1890). In proceedings for condemning a right of way for 
a railroad over a mining claim it was not error to charge the jury ; 
*^ That in determining the compensation for the land taken, and Uie 
resulting damages, if any, to the remaining land, they may consider 
not only the uses and purposes to which it is now applied, but also 
any other reasonable use to which it may be adapted or might be 
appropriated by men of ordinary prudence and judgment. That if 
they believe from the evidence that the land contains deposits of 
gold, they may consider that fact as bearing upon the question of the 
valne of the premises; and that if the presence of gold enhance either 
the market value or the intrinsic value thereof, due weight must be 
given to that fact; but that if the value is not thereby increased, the 
mere fact that gold can be found upon the premises should be dis* 
regarded. That the facts that the land is designated as ' placers,' 
and that title thereto was acquired under the mining laws of the 
United States, constitute no evidence either that the ground in ques- 
tion contains valuable deposits of gold or other mineral, or that the 
same are valuable for placer purposes.'* 

«^^ Morris v. W. & R, B. T. P. B, Co.^ 4 Bush, 448 

«»o«y- (1868). A shanty put up and occupied for the sole pur- 
pose of preventing the condemnation of a stone quarry, and not in 
good faith for a dwelling-house, will not entitle the owner to the 
exemption of quarries within two hundred yards of a dwelling-house, 
as provided in chap. 103, Rev. Stats. 

J-, Chicago J Santa Fe^ & Cal. By, Co, v. MeChrew^ 104, 

JUBsouxi. ggg (1891). The damages paid for land condemned for 
nilroad purposes, on which the owner has a coal mine and appli* 
anoes, should be a compensation for the whole of the property as it 
remained at the time the appropriation was made, in view of the uses 
to which the laud appropriated was to be applied. The damages 
should not be confined to the surface and machinery, but should also 
apply to the internal arrangement of the mine and the appliances 
therein provided for its economical and successful operation, and to 
all the external arrangements which add to its value. Previous trans- 
portation facilities which are cut off are to be included, and the 
benefit accruing from the construction of the railroad by way of 
increased facilities for marketing the product of the mine should be 
deducted from the damages. 

Montan Bobertson v. Smithy 1, 410 (1871). Rev. Stats. 2477, 

*• provides " that the right of way for the construction of 
highways over public lands, not reserved for public uses, is hereby 
granted." This only gives a right of way over public land not other- 
wise appropriated, and not over mining claims located in accordance 
▼ith the provisions of the act. Such lands cannot be taken for a 
poblic highway unless there is a legislative provision for just com- 
pensation to the miners. 


In section 1 of this act the words ^^ subject to such regulations as 
may be prescribed by law " is merely a reservation of the right to 
regulate by legal enactments the manner and conditions under which 
claims must be worked by miners. And the clause ^' subject also to 
the local customs or rules of miners in the several mining districts '* 
relates to the rules, customs, and regulations regarding the location, 
uses, and forfeiture of mining claims. 

Mountain By. Co. v. Warren^ 6, 275 (1887), aflarmed in s. c. 137 
U. S. 348. In proceedings for the condemnation of a mining claim 
for railroad purposes, the owner may prove its value as a " prospect" 
and for town-lot purposes, but his recovery is confined to the value 
for one purpose or the other. 
J- Y k People V. Eldredge^ 3 Hun, 541 (1875). The owner 

ew or . ^j ^^ gypsum or plaster on certain lands, with the right 
to mine and remove the same, has an estate or interest in the lands 
distinct from that of the owner of the soil, which gives him a right 
to damages for injuries caused by the laying out of a highway over 
such lands. The measure of damages is the difference in value of 
the estate in the minerals without the road and with the road as laid 

Penns Iv la. '^'earZe v. R. B,, 33, 57 (1859). Where a railroad 
ennsy van ^^^ right of eminent domain takes coal land which has 
never been mined, the measure of damages is the value of the land 
taken, and the actual damages arising from the manner in which the 
road went through the land and affected the improvements, and not 
the value of the coal under the surface. Nor is it the subject of 
damages that the owner, when he opens his mines, will, by the 
existence of the road, be put to expense and inconvenience in working 

Brown v. Corey^ 43, 495 (1862). Proceedings may be had against 
an owner of a stratum of coal, as contradistinguished from the owner 
of the surface, where there has been a severance of the estates to 
obtain an underground right of way under the Lateral Railroad Law. 

Lawrence's Ap.^ 78, 365 (1875). A railroad company constructed 
their road without legal proceedings to appropriate the land on which 
it was located, and without objection by the owner. Afterwards pro- 
ceedings to assess damages were begun, but were compromised and 
released. Held^ company's title was not through these proceedings, 
but by the original occupation, without objection by the ownera. 

After the construction of the road, but before the release, the land 
was leased. Held^ that the lessees took it subject to the railroad's 
right of way, that the latter was entitled to surface support, and the 
lessees were enjoined from mining so as to endanger it. 

Mine Hill & S. H, B. B. Co. v. Lippincott, 86, 468 (1878). The rail- 
road company having built its road over a ^act of land, entered into 
an agreement with the owners, by which the latter released all claims 
for damages and for the use and occupation of the ground and the 
right of way, and the company agreed that the tenants might mine 
the coal in the land as though the railroad had not been constructed 
thereon ; that upon notice that the coal beneath the road was to be 
mined they would take measures necessary to protect the road, or, 


if this was not possible, to relocate the road on suitable adjacent 
land. The railroad on notice refused to do so, and enjoined the 
tenant from mining the coal which supported the road. Held^ the 
company was liable in damages for the breach of contract, and that 
the tenant might bring an action therefor in the landlord's name. 
The measure of damages was the value of the coal left standing, and 
a release by the landlord would not defeat the tenant's right of action. 
A sale by the tenant of all his right, title, and interest in the colliery 
did not pass his right to damages for this breach of covenant. 

Reading & P. R. R. Co, v. Balthaser, 119, 472 (1888). In pro- 
ceedings for the recovery of damages for the location and construc- 
tion of a railroad, though the character of the land as mineral land 
is a proper subject for consideration in estimating the damages, yet 
it is error to admit in evidence an estimate of the specific value of 
the mineral beneath the surface for the purpose of either recovering 
the value of the mineral itself, or as an element to determine the 
market value of the land. ^^ The value of the plaintiff's land as lime- 
stone land was a proper subject of consideration both by the wit- 
nesses and the jury in estimating the damages, but not the value of 
the stone under the road. . . . The doctrine of Searle v. The Rail- 
road has never been departed from, nor is it likely to be. It is 
founded upon sound principle and practical common sense." 

Penn. Gas Coal Co. v. Versailles Fuel Gas Co., 131, 522 (1890). 
If in addition to severing the coal from the surface by a sale, the owner 
releases his vendee and the underlying estate from the obligation of 
surface support, the release is binding upon him and those taking 
title from him, but it cannot bind the State or its grantee entering by 
right of eminent domain. 

In case of such entry the owner of the subjacent strata is entitled 
to compensation, and the damages are to. be ascertained not by a cal- 
culation of the quantity of coal, but by the effect of the appropriation 
on tbe tract as a whole. 

If the appropriating corporation has no knowledge of the release of 
the right of support, or fails to tender bond to the owner of the coal, 
the latter's remedy is by bill for injunction or proceedings to obtain 
an assessment of damages. 

^' If the latter mode be adopted, the amount of support needed, the 
probable length of time the structure may remain in place, the pos- 
sible danger from its use, are elements that enter into the calculation 
of the damages to the extent that they may affect the market value of 
the underlying estate, but not otherwise. If the proceeding by bill 
be chosen, we see no reason why the owner of the subjacent stratum 
has not a right to require security to be given before the appropria- 
tion of his coal to the support of the surface is made by the corpora- 
tion entering upon the surface for the construction of its railroad, 
canal, or other line of transportation. 

^^ As we have already said, the character of the structure to be put 
open the surface, the use to which it is devoted^ the depth below the 
surface at which the vein of coal is found, and the regularity of the 
geological formations, are circumstances to be taken into account in 
determining the amount of support needed, and of the compensation 
to which the coal-owner is entitled." 


MtGregor r. Sqwtahle Gas Co.^ 139, 230 (1891). An entry upon 
bind by virtue of the right of eminent domain confers a right to have 
the surface, or in the case of a gas-pipe line the portion of the 
ground through which the pipe runs, supported by the subjacent 
strata; but tlM Commonwealth's grantee is not bound to include this 
servitude in the easement appropriated* He may release the land- 
holder from this burden, in which case '* he ought to pay not the value 
of the coal in place, for the title to the eoal does not pass to him, but 
the depreciation in price of the propertj^ by reason of the servitude 
imposed upon it 

*'*' If he does release the right of support from the coal or other 
mineral underlying the surface, then the owner of the coal may mine 
and remove it as freely and fully as though no entry had been made 
upon the surface, and for that reason it should not be taken into con- 
sideration in adjusting the damages to the land-owner/* 

Danger of escape of gas into the mine by reason of subsidence that 
would be caused by mining the coal beneath the pipe line, and other 
dangers that might result from n^ligence, are excluded from con* 
sideration in the determination of damages, as remedies are provided 
therefor by the law. 

DavU V. Jeffenon Gas Co.^ 147, ISO (1892). The right of a cor* 
poration appropriating land under the right of eminent domain for 
a pipe line for the transportation of natural gas, to insist upon sup- 
port from the underlying coal, is an element for consideration in the 
ascertainment of compensation to the land-owner, not by estimating 
the value of the coal supposed to be necessary to remain to afford 
support, but by considering the extent to which the value of the ti*act 
as a whole is affected. 

Therefore it was error to refuse an offer *' to prove the character of 
the soil through which defendant's pipe line runs, the depth of the 
line below the surface of the ground, the proximity of defendant's 
line to the surface of the underlying coal, the danger of the surface 
falling in when the coal is removed, the probable breaking of defend- 
ant's pipes, the danger of gas escaping into plaintiff's mine; and 
that for the purpose of showing the general depreciation in the market 
value of plaintiff's property." 

It was likewise error to refuse to chaise '^ that the easement of the 
defendant company obtained under the right of eminent domain car- 
ries with it the right of support for its lines ; and the owner of the 
land has no right to remove coal or other minerals under said lines, 
to their injury or detriment; " ^^ that the right of the plaintiff to use 
the ground appropriated by defendant company, which, in this case, 
is a strip ten feet in width and seven hundred and ten feet in length, 
is subordinate to the superior rights of the Jefferson Gas Co. ; and 
this superior right to use the ground so appropriated extends to all 
the minerals underlying said line, including the coal, the removal of 
which would endanger the safety of the pipes of defendant company." 

Though a release by the corporation of its right to damages for 
injury to its lines by the removal of the underlying coal may operate 
as an estoppel against a clAim by the corporation for such damages, 
yet such release will be ineffectual as against the coal-owner's right 


to oompeDsatioD for the risk of inJarieB to the miue in the operation 
of tbe pipe line. 

Wallace v. Jefferson Oas Co.y 147, 205 (1892). In an action to 
recover damages for injury to coal lands, it appeared that a gas pipe 
sixteen inches in diameter was laid on plaintiff's land at a depth of 
three feet below the surface. The underlying coal was at a varying 
distance below the surface, ranging between eighty-seven and a half 
and two hundred and seventeen feety the average depth being about 
one hundred and forty-three feet. A nnmber of witnesses testified 
that it was necessary to leave a wide strip of coal permanently under* 
neath the pipe; that if such a strip was not left there wae danger of 
tbe pipe breaking and the gas being liberated into the mine below. 
None of this lestinoBy was based upon any instances known to tbe 
witnesses where sneb Inreaks had occurred. Meld^ that the testimony 
shoald be excluded. 

Evidence of the depreciation of the market value of land founded 
upon the supposed increased expense of mining coal, caused by 
the coostructioD of a pipe line, is fnadmissible, as too remote and 

Where a pipe^liae company releases to the land-owner the right of 
support for its pipe, the element of possible damage from subsMence 
of the surface wiU not be considered. 






I. What Land is open to Location 

Mineral Land. 
IL Who nutj locate a Mining ClaiuL 

A. Citizenship of the United States 

the Essential Beqaisite. 

B. Other Qualifications of Locatora. 

C. Location by Agent or Partner. 

Where minerals are found in lands which are the property 
either of the State or National government, they, in the absence 
of right in some one else derived from grant or reservation, 
belong to the State or Nation. The government in such case has 
the same rights as a private individual, owning everything which 
is of the realty, from the centre of the earth to the heavens.^ 

It is the policy, however, of both the National and the State 
governments to dispose of their lands to the people. This, as 
a rule, is accomplished by grants or sales, under genei:al statutory 
systems, according to which mineral lands are segregated from 
lands of other kinds. 

We sliall deal here only with the mineral land system of the 
United States, that being the important system, owing to the fact 
that the great mineral deposits of the West have been discovered 
upon the public domain of the United States.' 

From the foundation of the government until 1866 the settled 
policy of the United States was not to part with the ownership of 

1 As to the title of the goyemment to 8, 5477, 5480-90; Minn., Gen. Stats. 1894, 

minerals where the overlying surface had sees. 4076-82 ; Act April 24, 1895, ch. 105 ; 

been granted by the Mexican govern- Whileman r. Severance, 46 Minn. 495 ; 

meiit before the cession to the United Baker t. Jamison, 54 Minn. 17 ; Ne- 

States, see Moore r. Smaw, 17 Cal. 200. yada, Act March 3, 1887, p. 102; New 

- For the systems of the States by York, Rev. Stats. (8th ed.), pt. l,ch.9,tit. 

which their mineral lands are disposed of, 11, pp. 818-19 ; Moore r. JSroton, 139 N. Y. 

the reader is referred directly to their 127; Ohio, Rev. Stats. 1890, sec 914; 

statutes. Their importance is so limited Texas, Act March 29 ; July 6, 1889, 91 

that extended exposition of them is ob- Leg. p. 116; Wash., Gen. Stats. 1891» 

Tionsly needless. California, Act March sees. 2246-62 ; Wis., Ann. Stats. 1889, sec 

28. 1874; Polit. Code, 1885, sec. 3503; 220, p. 221. 
Michigan, 2 How. Ann. Stats., sees. 5355- 


its mineral lands. From every grant they were reserved, so that 
the courts took the view that, from this policy, an intention to do 
80 was implied in all cases.^ 

The necessity for a change of that policy is thus described by 
Miller, J., in Mining Co. v. Keystone Con. Min. Co.y 102 U. S. 167 : 

^ Very soon after the conquest of California and its cession to 
the United States by Mexico, it was found to be rich in the 
precious metals, and such was the rapid influx of immigrants 
from the Eastern States that the California population at tlie time 
that it was organized as a State in 1850 was composed of mining 
camps and settlements engaged in mining these metals. As 
nearly all those mines were discovered on land the title of which 
was vested by the treaty in the government of the United States^ 
it became important to deteimine what course the government 
would take with regard to this new source of untold wealth. The 
Spanish government, to which this territory and much other, rich 
in precious metals had oilce belonged, had instituted a system 
of laws concerning her mines by which . private enterprise was 
invited to develop them, and a revenue secured at the same time 
to the crown, which made Spain, for a time, the richest of the 
civilized governments of the world. This system Mexico had 
inherited and perpetuated, and there were many American states- 
men who believed that with the territory, we had acquired the 
laws which governed the production of gold from the earth. 
Others believed that, whether this were so or not, it would be a 
wise policy for the government to secure to itself a fair proportion 
of the metal produced from its own ground. But while Congress 
delayed and hesitated to act, the swarm of enterprising and in- 
dustrious citizens filled the country, and before a State could be 
organized had become its dominating element, with wealth and 
numbers and claims which demanded consideration." 

While Congress failed to act, the miners made a law for them- 
selves, as described below .^ These customs and regulations of 
miners obtained the recognition of the legislature and the courts 
of California. The latter, to give a legal title to those who under 
these customary regulations were mining upon the public domain, 
adopted the fiction that the first appropriator of the public mineral 
land had a license to mine from the government, and if, in bis 

1 Morton t. StaU ofNebradca, 21 Wallace, 660. 
« Chap. X. 


appropriation of the land, he complied with the regulatioos of tlie 
mining district, that license was protected as a property right*^ 

Bj the act of July 26, 1866, Congress passed a law by whicdi 
the title to mineral land might be acquired from the government 
at nominal prices. This and the act of May 10, 1872, so far as 
unrepealed, had been consolidated in Rev. Stats., Title XXXII., 
chap. 6, and, with the acts supplementary thereto, now govern 
exclusively the granting of mineral lands by the United States.^ 

These acts continued the system of free mining, held the min- 
eral lands open to exploration and occupation, subject to legisla- 
tion by Congress and to local rules, and recognized the obligation 
of the government to respect private rights which had grown 
up under its tacit consent and approval. They proposed no new 
system, but sanctioned, regulated, and confirmed a system already 
established, to which the people were attached. It is particularlj 
provided that existing rights shall not be impaired. 

Title to mineral lands can be obtained only under these acts. 
^ In all cases lands valuable for minerals shall be reserved from 
sale, except as otherwise expressly directed by law." Bev. Stats* 
2818. How that title may be obtained is the subject of the fol* 
lowing chapters. 

By Rev. Stats. 2845 mineral lands in Michigan, Wisconsin, and 
Minnesota are excepted from the provision of the Mineral Land 
Laws ; by the act of May 6, 1876 (19 Stat. 62), 1 Sup. to Bev. 
Stats. 104, a similar exception is made as to Kansas and Missouri ; 
and by act of March 8, 1888 (22 Stat. 487), 1 Sup. to Bev. Stats. 404, 
as to Alabama.' In these six States mineral lands are acquired 
from the United States in the same way as agricultural land.^ 

I. What Land is open to Location as Mineral Land. 

By Bev. Stats., sec. 2819, ''All valuable mineral deposits in 
lands belonging to the United States, both surveyed and unsur- 

1 Hicks y. Bell, 3 CaL 219 ; Stoakes v. Intire, id. 693; Levaram ▼. MiUer, 34 id. 

Barrett, 5 id. 36 ; McCUntockv. Bryden, id. 231. 

97 ; Fitzgerald r. Urion, id. 308 ; Tartar y. ^ Gtlddi ▼. Moriarty, 53 Cal. 217. 

Spring Creek W. ^ M. Co., id. 395 ; Burdge * Special provision is made by this act 

T. Underwood, 6 id. 45 ; Conger ▼. Weaver, as to coal and iron lands, as to whidi see 

id. 548 ; Boggt y. Merced M. Co., 14 id. Chap. XVIL 

279 ; Henskaw Clark and 103 Chinamen, 14 « By act of Cong., March 3, 1891, sec 

id. 460; Clark y. Duval, 15 id. 85; Smith 16 (26 Stat. 1026), I Sap. to ReY. State. 

Y. Doe, id. 101 ; Giilan y. Hutchinson, 16 929, aU lands in Oklahoma are dedaied to 

id. 153 ; Rogers y. Soggs, 22 id. 444 ; Rup- be agricnltoral. 
lejf Y. Weldi, 23 id. 453 ; Ensminger y. Mc- 


vejedy are declared to be free and open to exploration and pur- 
chase, and the land in which they are found, to occupation and 

To render land, therefore, open to location as mining ground, 
Uiree things are essential : — • 

1st. It must be land containing valuable mineral deposits. 

Mineral deposits are whatever are recognized as such by the 
standard authorities on tlie subject.^ They are valuable mineral 
deposits when they are of such value that they can be mined 
profitably. It must be borne in mind, however, that in making 
Hie statement we are discussing the question what lands are 
subject to location as mineral land. This test of the value of 
deposits is only applied when a contest arises between one claim- 
ing under a mineral location and another claiming under an entry 
of another kind. As will be seen when tlie subject of discovery 
is reached, a discovery of a trace of mineral is sufficient to estab- 
lish the priority of a location, though the commercial value of the 
deposit be unproven. 

2d. It must belong to the United States. It must be a part of 
the public domain at the time of the location. 

Sd. It must be unoccupied and unappropriated by others under 
claim of right. 

Land answering these three essential descriptions is open to 
location; land lacking in any one of them is not 

In addition to the cases collected below, see also those under, 
titles ''Forfeiture," "Abandonment," "Relocation," "Conflicting 

nnif A ate«. Faxon v. Barnard^ 2 McCrary, 44, 4 Fed. 702 

umtea states. ^jggQ^^ q q jy q^^^^ Qne in actual possession of 

Biniog ground who has discovered and uncovered the lode, but has 
failed to take the other steps required by law to complete his loca- 
tion, cannot be ousted by a subsequent discoverer from the ground 
sctaally held by him. A location cannot be extended over a senior 
discovery in the actual possession of another. 

Belk v. Meagher^ 104, 284 (1880). A location of a mining claim 
may not be made upon land already actually covered at the time by 
another valid and subsisting location. (See this case under Chaps* 
IX. and XII.) 

Diifftbiiek v. Hawke^ 115, 392 (1885). See this case under Chap. 
rVL, Div. I. 

^ For discnBBion of this natter the reader is referred to the Geological Preface. 
* Chapfl. XL, XIL, and XVI. 


Davis V. Weibbold, 139, 507 (1891). Field, J. : " By the act of May 
10, 1872, to promote the miniDg resources of the United States the first 
section of the act of 1866, declaring the mineral lands of the United 
States free and open to exploration and occupation, was repealed, and 
in the place of it a provision was adopted declaring that * all valuable 
mineral deposits ' in lands belonging to the United States, both sur- 
veyed and unsurveyed, were free and open to exploration and pur- 
chase, subject to conditions similar to those in the original act. The 
Revised Statutes, which embody the law of the United States in force 
on the first of December, 1873, in its treatment of mineral lands, pro- 
vided that in all cases lands valuable for minerals should be reserved 
from sale, except as otherwise expressly directed by law (§ 2318), 
but at the same time repeated the declaration that all valuable mineral 
deposits in lands belonging to the United States should' be free and 
open to exploration and purchase (§ 2319). After that date title 
to mineral lands, known at the time to be valuable, could only be 
acquired under provisions specially authorizing their sale, except in 
certain States." 

Francoeur v. Newhouse^ 43 Fed. 236 (1890), C. C. D. Cal. Land 
is mineral land if the fact is so obvious that any one seeing it would 
know it to be so, even though it was not known to be mineral land, 
because no one had ever inspected it. 

Gird V. California Oil Co., 60 Fed. 631 (1894), C. C. L. D. Cal. 
^' The premises in controversy are oil-bearing lands, the government 
title to which, under existing laws, can alone be acquired pursuant 
to the provisions of the mining laws relating to placer claims.'* 
Koss, D. J.^ 

California ^^^^^ ^' Merced Min. Co,, 14, 855 (1859). The United 
' States could neither enter upon nor authorize an entry 
upon private property for the purpose of extracting mineral. Like 
any other proprietor they could only exercise the right to minerals in 
private property in subordination to such rules and regulations as the 
local sovereign might prescribe. Until such regulations are estab- 
lished, the proprietor of the land may successfully resist, in the courts 
of this State, all attempts at invasion of his property, whether by 
the direct action of the United States or by virtue of any pretended 
license under their authority. 

Henshavj v. Clark^ 14, 460 (1859). Where plaintiffs derived their 
title to land from a grant of the Mexican government, and a United 
States patent confirming the same, the land was private property, 
and defendants did not, as miners, have a license from either State 
or Federal government to enter upon the same and extract minerals 

Smith V. Doe, 15, 100 (1860). As a general rule, the public 
mineral lands of the States are open to the occupancy of every per- 
son who in good faith chooses to enter upon them for the pui*pose of 
mining, and under the provisions of the statute of California (Wood's 
Dig. 527) all lands are presumed to be public lands until title is 
shown to have passed from the government to private parties. 

Morenhaiit v. Wilson, 52, 263 (1877). " The instant an abandon- 

^ The location of petroleum lands is now regulated by act of Congress, Feb. 11, 1897. 


ment takes place a vacancy in the possession occurs. The right of 
possession of the former occupant is absolutely lost, and the land 
becomes publici jurisj and free to the occupation of the next comer, 
whoever it may be," 

DuPrat V. Jamesy 65, 555 (1884). Ground forfeited by failure to 
perform the amount of labor required by law is subject to instant 
relocation, although in the occupancy of the original locator. 

Hall V. Amotty 80, 348 (1889). A valid location or relocation can be 
made only when the ground is open to exploration and appropriation. 
^. Armstrong v. Lower^ 6, 393 (1882). Only the unoccu- 

^^ ^' pied and unappropriated mineral lands of the general 
government are open to exploration and location. When a locator 
has fully complied with the law in locating his claim, he is entitled 
to exclusive possession and enjoyment thereof until it is forfeited 
or abandoned. 
Mo tana. Kii^9 V- Edwards^ 1, 235 (1870). Upon forfeiture the 

^ ground of a mining claim becomes again unappropriated 

mineral land of the United States, and is open to relocation. 
-_ . Golden Fleece G, & S. M, Co. v. Cable Con. G. & S. M. 

wevaaa. ^^^ j^^ ^^^ (^377)^ ^^3^ a mining claim has been for- 
feited by reason of non-compliance with mining regulations, or has 
been abandoned, or the locator is not a citizen of the United States, 
the ground is open to relocation. 

^^, Eilers V. Boatman^ 3, 159 (1881). As between two locators, 

' one cannot locate ground of which the other is in actual pos- 
session under claim or color of right, because such ground would not 
be vacant and unoccupied ; but the possession of a vein recognized 
by the mining laws, to which protection is given, is the possession 
of one who holds the surface where the vein makes its apex. The 
location of a vein or lode made upon the surface, where it finds its 
apex, will not be defeated by secret underground working by parties 
having no possession of or right to the surface embracing it. 
Waahi fffc Wheeler v. Smithy 5, 404 (1893). Land containing 

^^^' a deposit of limestone, entirely devoid of ore, cannot 
be located under the mineral laws of the United States. '^ Mines 
as known to those laws embrace nothing but deposits of valuable 
mineral ores, and do not include mere masses of non-mineralized 
Fock, whether rock in place or scattered about through the soil." 
"A mining claim, whether lode or placer, is not est^^blished or 
entitled to be patented under the mineral laws of the United States 
nnless it contains some of the metals for which mining works are 

The Stone and Timber Act of June 3, 1878, which authorizes the 
sale in Washington, Oregon, California, and Nevada of land chiefly 
valuable for stone, and which prohibits the acquisition of mineral 
lands under its provisions, shows an intention on the part of Congress 
to prohibit the acquisition of stone land under the mineral laws.^ 

* Freezer . t. Sweeney ^ 8 Mont. 508, all coDtroversy on the snbject of building 

to the contrary. The role in Wheeler r. stone by making deposits of such snbject 

Smith was followed in the Land Office, to location as placers, 
^nt the act of Aug. 4, 1892, has settled , 


Land Office Decisions. 

Lands contaming the following deposits may be located under the 
mining acts: Borax, Copp, 100 (1893;, 1 L. D. 561 (1883); Diamonds, 
id. 88 (1872); Deposits of fire clay or kaolin, id. 121 (1878), id. 
176 (1875); Dobbs Flacer Mine, 1 L. D. 565 (1883); Iron, Copp, 124 
(1873), 134 (1874); Roofing slate, id. 143 (1874); Umber, id. 161 

ii875); Limestone or marble, id. 176 (1875); Mica, id. 182 (1876); 
iiypsum, 1 L. D. 560 (1881); Carbonate and nitrate of soda, sulphur, 
idum, and asphalt, 1 L. D. 561 (1883) ; Phosphate of lime, Gart/ v. 
Todd, 18 L. D. 53 (1894). 

If these are found in veins or rock in place, the proceedings must 
be those prescribed for lode claims. If not so found, then they must 
be located as placer claims. Copp, 124 (1873); id. 134 (1874); id. 
161 (1875). 

Land may not be located as mineral land on the ground that it 
contains a deposit of brick clay: Dunluce Flacer Mine, 6 L. D. 761 
(1888); or hot mineral springs: Morrill v. Margaret Min. Co., 11 
JL. D. 563 (1890; ; or aluminum, Jordan y. JdaJu> Co., 20 L. D. 500 

Where land is of little value for agricultural puiposes, but is 
essential to the proper development of certain mines, for running 
tunnels thereto, it will be withheld from sale as agricultural land 
and disposed of only under the mineral land law. Copp, 186 (1876). 

Mineral lands within the limits of unconfirmed Spanish or Mexican 
grants in Arizona, reported to Congress for action, are reserved from 
sale and from exploration and location by mineral claimants. Copp, 
308 (1881). 

^^ Lands valuable for minerals,*^ in Rev. Stats. 2318, means ^* lands 
which it will pay to mine by the usual modes of mining." Townsiie 
of De.ndwood, Copp, 324 (1881). 

Whatever is recognized as a mineral by the standard authorities 
on the subject, where the same is found in quantity and quality to 
render the land more valuable on this account than for agricultural 
purposes, is within the meaning of Rev. Stats. 2318, 2319. 1 L. D. 
S60 (1881). 

Where the claim in efifect is for a water right, only to develop 
placer claims at a distance, it is not competent to issue patent there- 
for as a placer claim. RohU S, Hale, 3 L. D. 586 (1885). 

Stone that is useful only for general building purposes does not 
render land containing the same, subject to appropriation under the 
mining laws, or except it from pre-emption entry. ^Congi'ess seems 
to have recognized the fact that a stone quarry is not a ^ placer mine,' 
and it passed an act June 3, 1878 (20 Stat. 89), providing for timber 
and stone entries. The stone in the tract in controversy has no 
peculiar property or characteristic that gives it especial value, such 
as attaches to gypsum, limestone, mica, marble, slate, asphaltum, 
borax, auriferous cement, fire clay, kaolin, or petroleum, and its 
value in this particular mine appears to be its proximity to the town 
'of Alexandria, which has come into some prominence, having beeo 


cboeen as a county seat since the entry in question was made/' 
Conlin v. Kelly, 12 L. D. 1 (ISdiy 

A tract of land chiefly valuable for a deposit of slate, and unfit 
for agriculture, may be entered under the Stone and Timber Act of 
Jane 3, 1878; whether it might be entered under the mineral laws 
not decided. Parks y. Hendsch, 12 L. D. 100 (1891). 

Land chiefly valuable for deposits of building stone may be entered 
ts placer mining claims under act of Aug. 4, 1892. Minnekahta 
&Qne Mine, 15 L. D. 256 (1892). 

Land containing deposits of sandstone of a superior quality for 
bailding, monumental, and other purposes may be entered as a placer 
claim. This case is distingulsned from Conlin v. Kelly, 12 L. D. 1, 
in that in that case the equities were with the agricultural claimant, 
and the stone was useful only for general purposes and of little com* 
mercial value, ^^ while in this case the stone is not only useful for 
those purposes, but also very valuable for the ornamentation of 
buildings, and for monuments and other commercial purposes." 
MeGlenn v. Wienbroeer, 15 L. D. 370 (1892) ; Van Daren v. Flested, 
16 L. D. 508 (1893). 

Land chiefly valuable for the building-stone which it contains is 
not, by such fact, excluded from entry under the settlement laws. 

It does not follow from the act of Aug. 4, 1892, /^ that land chiefly 
valaable for building stone shall be considered as mineral land, or 
that such land may not also be entered under the homestead law, or 
that it might not have been entered under the pre-emption law prior 
to its repeal. It then becomes a question of priority of the claims.'' 
Prior to the act, there was no authority for a placer location of such 
land, and such a location will not defeat a subsequent settlement 
claim initiated prior to the passage of said act. Clark v. Ervin, 
16 L. D. 122 (1893). 

Land embraced in an application for patent, but excluded there* 
from when entry is made, is thereafter vacant public land, and may 
be properly included within the subsequent application of another, 
and a discovery on such tract is sufficient to support the later claim. 
Adams Lode, 16 L. D. 233 (1893). 

Lands chiefly valuable for deposits of ordinary building stone are 
not excepted as mineral land from grants to a State for school pur- 
poses. The fact that the act of Aug. 4, 1892, provides that certain 
kinds of stone quarries may be entered under the placer laws does 
not warrant the finding that such stone quarries constitute mineral 
lands in the sense in which such lands are held to be excepted from 
grants. South Dakota v. Vermont Stone Co., 16 L. D. 263 (1893). 

Land containing stone useful only for building purposes is not 
thereby excluded from agricultural entry, though more valuable as a 
quarry than for agricultural purposes. Hayden v. Jamison, 16 L. D« 
537 (1893). 

Land containing stone suitable for making lime may be entered as 
a placer claim, or purchased under the Timber and Stone Act. Where 
there are claimants nnder both laws, priority of right prevails. 
Sk^kerd v. Bird, 17 L. D. 82 (1893). 

^ See footnote on page 199. 


A placer location made prior to the act of Aug. 4, 1892, of land 
chiefly valuable for a deposit of glaBs sand and building stone, is not 
a legal appropriation, and a subsequent intervening homestead entry 
of another will defeat the right of the placer claimant to perfect his 
claim under said act. Florence D. Delaney^ 17 L. D. 120 (1893). 

Land containing a ledge of limestone may not be located as a lode 
claim. To exclude laud from agricultural entry on the ground that 
it contains a valuable bed of limestone, it must appear affirmatively 
that it is more valuable on account of the stone than for agricultural 
purposes. Long v. Isaksen^ 28 L. D. 353 (1896) ; Wheels v. Smithy 
23 L. D. 395 (1896). 

II. Who mat locate a Mining Claim. 

A. Citizenship of the United States the Essential Requisite. 

The mineral deposits upon the land belonging to the United 
States are open to location only by citizens and those who have 
declared their intention to become such. Rev. Stata 2319. 

What shall constitute proof of such citizenship is provided by 
Rev. Stats. 2821. The provisions of this section apply to litiga- 
tion in the courts as well as to applications in the Land Office. 

A location by an alien is void. But it may be validated by 
subsequent naturalization, in which case the location will date 
from the declaration of intention, and not from the making the 
location. It follows, therefore, that work done previously to the 
declaration of intention will enure to the benefit of the locator, 
but will not cut out intervening rights. And it is submitted, 
though it has been doubted, that a location by an alien may, if 
no other rights intervene, be validated by a bona fide convey- 
ance to a citizen who takes possession and continues to perform 
the requirements of the laws ; not so, however, if the conveyance 
Js collusive. 

The fact of citizenship is an essential to tfie validity of the 
location, and must be affirmatively proved by one who alleges 
a location, and its decision is a question for the jury. The pre- 
sumption is that when the locator was a resident of the United 
States, he was at the time a citizen. 

It has recently been held in the Court of Appeals of the Eighth 
Circuit that want of citizenship of a locator cannot be set up by 
any one except the United States. This decision is based upon 
the general rule that the right to defeat a title to realty on the 
ground of alienage is reserved only to the sovereign ; and if the 


case is not confined to sits facts, and the principle laid down pre- 
Tails, the result will be that ground located by an alien cannot 
be relocated until be has been deprived of his title by some act of 
the government, which ordinarily will not occur until there has 
been an applicatioa for a patent, and it becomes necessary for 
bim to establish his right either as applicant or adverse claimant. 
In actions for the possession of unpatented claims, therefore, the 
want of citizenship would no longer figure. 

Where the locator is a corporation, the members must all be 
severally qualified to make a location. It is consequently void if 
any of them is an alien. But where several persons have made 
a joint location, and one of them is an alien, the location is not 
entirely void, but only as to the interest of the alien. Though 
an alien may not locate a claim, he is not debarred by the above 
sections of the Revised Statutes from holding a claim acquired 
from a locator properly qualified.^ Nor, consequently, is a cor- 
poration with alien stockholders, nor a foreign corporation, unless 
otherwise disqualified. The alien's title then arises by virtue of 
the conveyance, and his incapacity to hold the claim can only be 
objected to by the government. Such objection can, therefore, be 
raised upon his application for a patent, or upon an adverse claim 
to such application. But naturalization pending proceedings for 
a patent or on an adverse claim removes this objection. 

Mineral entries will not be permitted by citizens who are mere 
agents of foreign corporations, or under contract to convey to 
such on obtaining patents. 

Htiif. jt a* ¥ North Noonday M. Co. v. Orient M. Co.^ 1 Fed. 

umtea Braces, g^^ (1880), C. C. D. Cal. If an alien performs all 
the acts necessary to make a valid location, and does the work neces- 
sary to keep the claim good, and then conveys the claim to a citizen 
who takes possession and continues to perform all the conditions 
required by law to hold such claim, such citizen acquires a valid 
title as against all persons who have not acquired rights before the 

If an alien and a citizen jointly locate a claim not exceeding the amount 
of ground allowed by law to one locator, such location is valid as to the 
citizen, and a conveyance from both to a citizen gives a valid title. 

A corporation organized and existing under the laws of a State is 
to be deemed a citizen within the meaning of the statute, and as such 
is competent to purchase and hold a mining claim.* 

^ Idaho, Act March 2, 1891, p. 119; y. CAtVWm, below, for different statemeiit 
Montana, Const. 3, 25. of this rule. 

' S^ McKinletf Y. Wheeler and Thomae 


North Noonday M. Co, v. Orient M. Co.j 11 Fed. 125 ; 8. c. 6 Sawy. 
508 (1880), C. C. D. Cal. Same ease on motion for a new trial. 

The affidavit provided for in Rev. Stats. 2321 ^ay be upon informa- 
tion and belief. The provisions of this section are not limited to the 
application in the Land Office for a patent. They apply to the litiga- 
tion of all claims arising onder the act, whether in the department or 
in the courts. 

Croesus M. Co. v. Colo. L. & M. Co., 19 Fed. 78 (1884), C. C. D. 
Colo. Upon declaring his intention to become a citizen, an alien may 
have advantage of work previously done, and of a record previously 
made by him in locating a mining claim on the public mineral lands, 
provided no other rights have intervened. What he had done towards 
locating the claim accrued to him as of the date of his declaration of 

Woodv. Aspen Mining & Smelting Co., 36 Fed. 25 (1888), C. C. D. 
Colo. William J. Wood, the locator of a mine in controversy, was 
born in Canada, where he lived until 1870, when he moved to Kansas, 
leaving his wife and children in Canada. It appeared that an entry of 
public lands had been made in Kansas by a William Wood, who made 
oath at the time that he was a citizen, the head of a family, consisting 
of a wife and seven children, and that he and his family had resided 
on the land from September, 1870, to April, 1871. A witness testified 
that he saw naturalization papers issued in Kansas in such locator's 
possession, but no record of such papers could be found in that State. 

Held, that the locator's title to the mine being of recent origin, the 
evidence of his citizenship was insufficient to support the same. 

O^Reilly v. Campbell, 116, 418 (1885). Action on adverse claim. 
''Had the objection been taken in the court below that citizenship of 
the plaintiffs had not been shown, it might, if not obviated, have been 
fatal. There is, however, nothing in the record to show that it was 
raised below. Proof of citizenship in proceedings of this kind may 
consist, in the case of an individual, of his own affidavit thereof, and 
in the case of an association of persons unincorporated, of the affidavit 
of their authorized agent, made upon his own knowledge, or upon 
information and belief. Rev. Stats., sec. 2321. The objection to the 
want of proof of that fact, if taken below, might have been met at 
once, if indeed the plaintiffs are citizens. The rule is general that an 
objection which might be thus met must be taken at the trial, or it will 
be considered as waived, except as to matters going to the jurisdiction 
of the court. The parties to this controversy own adjoining claims, 
and it is probable that the citizenship of each was known to the other, 
and therefore no proof on the subject was required. Be that, how- 
ever, as it may, the objection in actions of this kind cannot be taken 
in this court for the first time." Field, J. 

Hammer v. Garfield M. Co., 130, 291 (1889), affirming s. c. 6 Mont. 
53. The oath of one of the locators of a mining claim accompanying 
the recorded notice of the location is, in the absence of contradiction, 
prima facie evidence of the fact of the citizenship of all the locators. 

McKinley v. Wheeler, 130, 630 (1889). A corporation, created 
under the laws of one of the States of the Union, all of whose mem- 
bers are citizens of the United States, is competent to locate or joia 


k the locatioii of a mining daim upon the public lands of the Umted 
States in like manner as individual citizens. 

BQUngs v. Aspen M. A S. Co., 51 Fed. 8S8 (1892), C. C. App. 8th 
dre. An alien who in conjunction with others has expended time, 
Bioney, and labor in exploring for and locating a mining claim, may 
hold his interest, or recover the same if deprived thereof, as against 
his co-locators. No one can set up his want of citizenship except the 
United States. 

BOUngs v. Aspen M. A S. Co.^ 52 Fed. 250, C. C. App. 8th Circ. 
(1892). Rehearing denied. 

Persons other than the government can raise the question of the 
citizenship of a locator as mineral claimant only when he is seeking to 
obtain a patent for his claim. In that case he is required to prove his 
citizenship by Rev. Stats. 2,325. O'ReiUy v. CampbeU, 116 U. S. 418, 
disrtinguished on this ground. 

Eren if this is erroneous, it is unimportant, as it is found as a fact 
that the locator had declared his intention to become a citizen. 

Manuel v. Wulff^ 152, 505 (1894), reversing s. c. 9 Mont. 279. If 
in a contest under Rev. Stats. 2,326 one party who is an alien at the 
outset becomes a citizen during the proceedings and before judgment, 
bis disability to take title under Rev. Stats. 2,319 is thereby removed. 

*^ We do not think that the transfer of a mining claim by a qualified 
locator to an alien is to be treated as ipso facto an abandonment, or 
that the analogy of such a case to the casting of descent upon an alien 
can be maintained." 

** As M. was a citizen, if his location were valid his claim passed to 
his grantee, not by operation of law, but by virtue of his conveyance ; 
and the incapacity of the latter to take and hold by reason of alienage 
was, under the circumstances, open to question by the government 

Jantzen v. Arizona Copper Co., 20 Pac. 93 (1889). It 
wiU be presumed that a i^sident of the United States who 
has made a mming location, was a citizen at the time. 
Galifornia. Ferguson v. Neville j 61, 356 (1882). Rev. Stats. 2319 
does not prevent an alien from purchasing a mining 
daim from one who, being a citizen of the United States, located the 
claim according to provisions of the act of Congress. The title having 
passed from the United States to the locator, the latter had a right to 
make any sale or disposition of the property not inconsistent with the 
laws of the State. 

Lee Boon v. Tesh, 68, 43 (1885). In an action brought by several 
adverse claimants, in pursuance of Rev. Stats. 2326, to determine the 
right of possession to a mining claim, the complaint must allege that 
the plaintifiPs are, or have declared their intention to become, citizens. 
If the complaint allies one of the plaintiffs to be a citizen, and con- 
tains no allegations as to the citizenship of the others, the action 
should be dismissed as to the latter. 

No title to mining claims on the public lands acquired by location, 
occupancy, and working prior to 1866 was or is valid as against the 
United States or its grantees. As against the government, such occu- 
pants were trespassers, and, not l^ing citizens or having declared 


' their isiteiition to become suehy had no rights to be protected by the 
act of 1872. 

Anthony v. JUlson, 83, 296 (1890). One who is not a citizen of the 
United States, and has not declared his intention to become such, 
cannot make a valid location of public mineral land. So held of one 
who filed his declaration of intention the day after he attempted to 
make a location. 

Persons cl&iming right to a patent under Rev. Stats. 2,332, on 
ground of possession, must show citizenship. 

c 1 d Jackson v. Dines^ 13, 90 (1889). In an action against a 

o era o. ,.|^n^Q^^j company for damages for taking part of a mining 
claim, a complaint, showing plaintiff's possession and defendant's en- 
try without permission and injury to the soil and timber, is sufficient. 
In such an action averment of citizenship by plaintiff is unnecessary^ 
nor is he bound to show this fact unless its want is objected to by the 
defendant at such time and in such a way as to give him an opportu- 
nity to meet the objection. 

TIiomasY. Cliislwlm^ 13, 105 (1889). A corporation organized under 
the laws of the United States, or of some State or Territory, may 
make a valid location of a mining claim, provided the members are all 
citizens of the United States, and severally qualified to make a loca- 
tion. In a proceeding on an adverse claim, a party basing his title 
upon a location by a corporation must allege and prove the organiza- 
tion of the corporation and the qualification of its members. McKiU'^ 
ley V. Wheeler (supra) followed. 

Lee V. Justice M. Co.^ 29 Pac. 1020 (1892). Where a location is 
invalid because the locator is an alien, it does not acquire validity by 
conveyance to a citizen. The conveyance here was without considera- 
tion, and collusive.* 

BoJianon v. Howe, 2, 417; 17 Pac. 583 (1888). In an 
^* action for trespass upon mining ground where the legal title 
is in the United States, and the plaintiff's right is founded on a pos'* 
sessory title, he must aUege and prove his citizenship. \ 
jj- Territory v. Lee, 2, 124 (1874). A mining claim, hav- 

en ana. .^^ |^^^^ properly located, may be conveyed to and held by 
an alien, and the act of the territorial legislature '^ to provide for the 
forfeiture to the Territory of placer mines held by aliens," is unau- 
thorized either by the act of Congress or by the Organic Act of the 

Tihhitts V. Ah Tong, 4, 536 (1883). An alien cannot hold a mining 
claim purchased by him from the locator. Rev. Stats. 2319 opens the 
unappropriated mineral lands of the public domain to occupation and 
purchase by citizens only. An alien is thereunder incompetent to 
purchase those lands of the government. As location is tiie initial 
step to purchase, giving only a possessory title, which becomes com- 
plete upon the issuance of the patent, no one can hold a location who 
is incompetent to complete that title.' 

Garfield M. Jb M. Co. v. Hammer^ 6, 53 (1886), affirmed in 130 
U« S. 291. The right to the possession of a mining claim is derived 

1 This caae has been revened on an- * Manuel t. Widff\ wpra, to the 
cCber point. trar j. 


Only from a valid location ; consequently, if there be no location, there 
can be no possession under it. In an action to quiet title to a miniag^ 
claim, where plaintiff's ownership and right of possession are put in 
issQc, he must show affirmatively that he has complied fully with all the 
requirements of the act of Congress and the local rules and regulations 
relative to the location of mining claims, and has made, therefore, a valid 
location. An instruction to the contrary is not a prejudicial error, if 
the defendant did not introduce any evidence tending to invalidate 
plaintiff's location, but relied on an alleged forfeiture. In the absence 
of evidence, locators will be presumed to be citizens or to have de- 
clared their intention to become such. 

PrinceUm M. Co. v. First Nat. Bank of BtUte, 7, 530 (1888). A 
corporation may hold title to mineral land, though one of its stock- 
holders (owning fifty-five per cent of the stock) be an alien, the corpo- 
ration not having been the locator, but having acquired title subsequent 
to location. 

^ . jGrolden Fleece G. & S. M. Co. v. Cable Consolidated G, & 

wevaaa. ^^ ^ g^^^ ^^^ ^ ^2 (1877). Where the first claimant who takes 

up a claim is not a citizen, or has forfeited his right by non-compli- 
ance with mining regulations, or abandons his claim, the ground is 
open to relocation by any citizen of the United States. 

One of the five locators of a mining claim, title to which had passed 
into the defendant, on cross-examination testified that he was not a 
citizen, and had never declared his intention of becoming such, where- 
upon the court decided his location void, and excluded all evidence in 
regard to it Hehd^ error. Witness's admissions were not binding on 
his grantees, and his citizenship was a question for the jury to decide. 

Where one of several locators is not a citizen, in the absence of 
knowledge of the fact on the part of his co-locators, the whole location 
is not void, but only the claim of the alien. 

Sexier v. Gregovich^ 16, 325 (1881). A citizen and an alien made a 
joint location, and the alien subsequently was naturalized. After 
this the citizen relocated the same ground. He was held to be es- 
topped from denying the rights of his original co-locator or of those 
deriving title from him. 

Bouth Dak t Gorman M. Co. v. Alexander^ 2, 557 (1892). A min- 

^ ^* ing claim was located by citizens in 1877. In 1883 
one of these conveyed his interest to an alien, who subsequently con- 
veyed to plaintiff, a corporation competent to locate, acquire, and hold 
a mining claim. As against one seeking to locate the same ground 
sabeequent to the last conveyance, plaintiff's title was good. 

Land Office Decisions. 

Where locators are not applicants, it will be presumed they were 
citizens, unless allegations to the contrary are made before patent 
issues^ The objection comes too late after patent Wandering Boy^ 
Copp, 169 (1875). 

A foreign corporation purchasing a patent issued to citizens of the 
United States, takes all the right and is entitled to all the privileges 
that would have accrued to the original patentees had they retained 
their interest in the mine. Rev. Stats. 2326; CJopp, 177 (1876). 


A portion of a mining claim sdd to an alien cannot be patcalrtl 
while Buch owner is an alien ; bat on his declaration of intailkni lo 
become a citizen, his right dates back to his porehase, and he bmj 
thereupon secure patent for his claim. Copp,^ 192 (1876). 

An English corporation conveyed a claim to a citizen of the Dniled 
States, in trast, that he might obtain a patent, and he agreed to !•• 
convey upon securing the receiver's receipt. He had no fm:iher intefcst 
tiierein. He was held to be merely the agent of the corporation 
which, incompetent to secure title by proceedings under the statute, 
could not accomplish that end by indirection by means of an agenA. 
Capricorn Placer, 10 L. D. 641 (1890). 

A citizen of the United States, acting in the interest of a foreign 
corporation, cannot make a mineral entry for the benefit of sndi o«v^ 
poration. Hook v. Latham, 11 L. D. 425 (1890). 

A mineral entry made by an alien is not void but voidable, aod 
while of record, the land covered thereby is segregated from the pvlK 
lie domain. A protestant who makes a mineral location on land thoa 
segregated acquires no interest thereby, as against the government or 
the entrymen, that will entitle him to be heard on appeal. Lear§ t« 
Manuely 12 L. D. 345 (1891). 

B. Other QtutlificaUom of Loeaiari^ 

The locators of a mining claim must be persons or associa- 
tions of persons. 

These may be women or minors. In the case of coal landtf^ 
however, minors cannot make entry. 

Calif mi Thompson v. Spray, 72, 628 (1887). Minors who 

^ ^' citizens may locate mining claims under Rev. Stats. 
2319. The entryman of coal lands, however, under Rev. Stats. 2347 
must be over twenty-one years of age. 

Land Office Decisioks* 

A claim could not be located for the ^^ Miners* Relief and Terri- 
torial Poor Fund," as it was neither a person nor an association of 
persons, was without legal existence, and {)owerless and ineapi^ 
citated to ^^ occupy and improve" a claim, or perform those tutim 
of ownership or possession required of miners, as conditions essential 
to the holding of claims,* or of proceeding to make payment to 
the government and obtain patent. Terrible v. OwnboaJt, Copp, 80 
Women may locate and hold mining claims. Copp, 221 (1877).' 
The fact that the locator of a mining claim is a minor does not 
render the location invalid. Copp, 266 (1880). 

C. Location hy Agent or Partner. 

A mining claim may be located by one person for another. 
Such a location may be made cither in the name of the agent or 

^ 8m BoqaH ▼. DanieU, 18 I^ D. 528. 


of the principal. In the former case, if the relation of agency is 
established, the claim is held by the agent in trust for his prin- 
eipaU and a conveyance may be enforced. So also, when tha 
partnership relation exists, the location is for the benefit of the 
partners, all of whom have an interest therein. But the relation 
most exist at the time of the discovery and location* Where the 
location is made by one in the name of another, either alone er 
jointly with his own, the interest of the absent locator is valid, 
provided he either previously authorized or subsequently ratified 
the location* The ratification of the location when made relates 
to the date of' the location, and cuts out adverse intervening 
rights. When such location is made, the interest of the principal 
becomes vested, and the agent cannot by an act or declaration of 
his divest or alter that interest even before ratification, although 
the former had not yet acquired knowledge of the location. 

The Statute of Frauds has no application to this class of cases* 
The evidences of location are not a means of transferring or vest- 
ing title, but a mode of showing that the locator has availed 
himself of the government's concession to occupy and use the 

Where the agency is created for the purpose of exceeding the 
limit of ground which the principal may hold, a trust founded 
thereon will not be enforced. 

United State JohnsUme v. RoUnsm^ 16 Fed. 903 (1881), C. C. 

'* D. Ck>lo. The partnership relation or association be* 
tween parties who may be engaged in prosecuting explorations on the 
public lands for mines, must exist at the time of the alleged discovery 
and location, in order to give to the parties associated an interest in 
the property. If it does not then exist, so that the person acting in the 
fleldy making the location and tlve discovery^ can he said to be a^Aing fot 
ihiR otiiers as tceU as himself^ no interest can be acquired by those who 
are not personally present. 

Fuller V. Harris, 29 Fed. 814 (1887), C. C. D. Alaska. At the 
time of the location of a quartz mining claim by the employees of the 
claimant, there were no local rules of the mining district requiring a 
record of the location. Subsequently the claim was relocated by the 
owner so as to conform to the requirements of the act of Congress. 
Held, that as there was a valid location of the claim by the employer 
through his employees, his title dated back to the first location. 

One who was employed by another to prospect for and locate mining 
chums, in his receipt for wages received for such work, certified that 
his employer's claim was the first one located in the neighborhood, 
and therefore his employer procured laborers, and expended monej 



p,nd labor in developing the mine. Heldy that the employee was e^ 
topped from setting np a claim in himself. 

Hunt V. Patching 35 Fed. 816 (1888), C. C. D. Nev. The owners 
in common of mining claims, owing to difficulty in raising money to 
pay the taxes and to do the labor required by statute, to prevent a for* 
f eiture of the claims, after extensive correspondence between complain- 
ant, who was the principal owner, and defendant, who was manager of 
the mines, determined to allow a forfeiture, and let defendant immedi- 
ately relocate \he claims in new names. This he did on July 1, 1883, 
in his own name alone, after writing for advice to complainant, who 
prepared and sent him a form of notice in his name as locator. Held^ 
that a trust attached to defendant's title in favor of his associates. 
' Book V. Justice M. Co., 68 Fed. 107 (1893), C. C. D. Nev. " When 
a location is made by one person in his own name, at the expense of, 
for the benefit and on behalf of another person, such other person is 
certainly entitled to the ground so located," and is entitled to the bene- 
fit of work done thereon by the locator. There is no law prohibiting a 
corporation formed under the laws of another State from acquiring a 
mining claim in this way. 

An agreement to locate a mining claim for the benefit of another 
heed not be in writing. The Statute of Frauds has no application. 

Rush V. Frencfij 1, 99 (1874). L. and F., who had been 
prospecting together, parted company with an agreement 
that if either made a discovery he would locate tlie other with him. F. 
then furnished M. supplies to enable him to prospect, and M. making 
a discovery, located for himself and others, including L. Then at 
F.'s request M. made a further location on the same lode in L.'s 

In ejectment by a subsequent locator, it was error for the court to 
refuse to charge that the subsequent ratification by L. of the loca- 
tion gave it the same effect as if made by himself, and to qualify 
this by adding, ^^ unless a valid location by some other person had, 
in the interval between the location and ratification, been made and 

When a location is made for an absent locator, whether with or with- 
out his authority or knowledge, whatever rights are given to him by 
such location vest in him at once, and can only be divested by. his own 
acts or omissions, or by operation of law. It is not necessary that 
authority should exist or ratification take place before other valid 
claims intervene. 

The Statute of Frauds has no application to this case* ^' This writ- 
ing is to be signed by the party creating the estate, or by some one hav- 
ing written authority to do so. The party who locates a mine obtains 
an estate therein by such an act, but it is not he who creates that 

A location made by one in the name of another, with the purpose of 
having the latter convey to him without consideration the whole or a 
part of said claim, the former having already located in his own name 
all the ground that he lawfully could, is not void where the latter did 
not know of the purpose of the location. Whether it would be void 
under other circumstances not decided. 


daUfoniiA ®^^^ ^' McBrayer, 18, 582 (1861). G., M., and nine 

* others verbally agreed to prospect for quartz, and to be 
equally interested in the claims taken up. M. discovered a lead, and 
located it by putting up a written notice with his own, G.'s, and others' 
names on it. This process was the usual mode recognized among miners 
to indicate the taking up of a claim of this sort, as, in fact, an appro- 
priation or proof of appropriation of the claim. G. thus acquired a right 
to his share of the claim, which right could not be divested by M.'s tak- 
ing down the notice on the following day and putting up another which 
did not contain G.'s name. The Statute of Frauds has no application 
to this class of cases. It is not a mode of vesting or transferring title 
from the owners of the fee or the holder of the title, but a mere mode 
of showing that the locator has availed himself of the government's 
concession of the 'privilege of occupying and using the ground. This 
right may be exercised through an agent or servant ; whenever the ap* 
propriation is made by an agent having authority from a principal to 
make it, the act is complete and the title vests in the principal, and the 
agent by his mere act cannot subsequently divest it. 

Morton v. Solambo Copper Mining Co.^ 26, 527 (1864). If a mining 
custom allows a person to locate a vein or lode for himself and others^ 
by placing thereon a notice, with his own name and the names of those 
whom he may choose to associate with him appended thereto, designat- 
ing the extent of the claim, and one person thus locates a lode for him- 
self and others, some of whom have no knowledge of the location, these 
latter become tenants in common with the locator and the others, and 
cannot be divested of their interest by the locator's afterwards tearing 
down the notice and posting another omitting their names, unless this 
is done with their knowledge and assent. 

TJiompaon v. Spray ^ 72, 528 (1887). Mining claims may be located 
by agent. Where there is a local custom to that effect, it is not neces- 
sary that the person in whose name a location is made should be aware 
that it has been made. In the absence of such custom, there must be 
authority in the first instance, or ratification. Bringing of suit to quiet 
title is such ratification. 

Moritz V. Lavelle^ 77, 10 (1888). An agreement to locate and develop 
a mining claim for the joint benefit of the parties need not be in writing. 
If in pursuance of such an agreement one of the parties locates the 
claim in his own name, he is a trustee for the others to the extent of 
their interest, and they are entitled to enforce conveyance to them. 

MUchell V. Cline^ 84, 409 (1890). A contract between several per- 
sons to locate for their joint benefit an amount of placer mining ground 
exceeding the limit of twenty acres for each individual, and to pretend 
to satisfy the law by using the names of additional locators who would, 
without consideration, convey their interests to the contracting parties 
jointly, is against public policy, and a court of equity will not enforce 
a trust founded on this contract in favor of one of the contracting 
parties against another of them who has procured a conveyance to 
himself individually from, one of the sham locators. 

Moore v. Hamerstagj 109, 122 (1895). A mining claim is real estate, 
and under the Statute of Frauds can only be transferred by operation 
of law or an instrument in writing. 


The location of a mining claim may be made in the name of another 
than the actual locator, and when so made the person in whose name 
it is made becomes vested with the legal title to the claim ; and wbexe 
at the time there was no fiduciary relation between them, and it was 
not made under any prior agreement to hold the claim in ^st for the 
actual locator, a subsequent parol promise to so hold it is void. 
^ . . Consolidated Republican Mountain M. Co. v. Lebanon 

woioraao. ^ ^^^ ^^ ^^ (1886). One who acted as the agent of 

another in perfecting title to a lode, having himself no interest therein, 
is not estopped after his agency ceased from conveying any other or dif- 
ferent title which he tJiereafler acquired to the premises in controversy. 
^j^^^ Kramer v. Settle^ 1, 485 (1878). If one of several co- 

^* locators of a mining claim caused notice ^f location to be 
recorded in the name of himself and others, in the absence of proof it 
will be presumed that the written consent of such others, as required 
by section five of the act in relation to mines, had been seen, and a 
minute made thereof by the recorder, before recording the notice. 

Lockhart v. Rollins^ 2, 603; 21 Pac. 413 (1889). One who holds a 
fiduciary relation as agent for the care, supervision, and sale of a 
mining claim cannot obtain an interest adverse to his principal by re- 
locating the claim in his own name. The relocation accrues to the 
benefit of the principal. 

-- ^^ -ffir6owrv.-Bc6(7i7igr, 8, 15(1877). A.,B., andC. entered 

int ) a verbal contract of partnership to prospect for, locate, 
record, pre-empt, develop, and mine quartz lodes in Montana Territory, 
each to have the same interest in the property. The S. 6. lode was dis- 
covered by them, but recoixled by B. and C. in their names. All three 
worked upon and developed the ground. Afterward D. located a part 
of the same ground under the name of B. lode, but the confiict was 
settled by a conveyance by D. to B. and C. Held^ the contract be- 
tween A., B., and C. was not within the Statute of Frauds, and A. was 
entitled to an interest in the ground, which he could enforce, and 
which was not impaired by the conveyance by D. to B. and C. 
^ Van Valkenburg v. Huff^ 1, 142 (1865). A. in making 

eva a. j^.^ Jq^j^^jJ^^ ^g^^ qj^ name without tiie latter's knowledge. 

By so doing he put himself in the place of servant or agent of C, and 
acquired no right which he could assert in himself. He could only 
acquire such right by abandoning the first location and relocating in 
his own name, in which case his right would date from this latter 

Cliase V. Savage Silver Mining Co.^ 2, 9 (1866). A. and B. located 
a mining claim in the name of themselves and four others, then they 
drew up a contract with prospectors, intended to be executed by all 
the parties, but which was signed by A. and B. only. Heldy one of the 
other associates could ratify the location without becoming bound by 
the contract. A. and B. did not profess to act as his agent in making 
the contract, and there was no agency to be ratified. 

Welland v. Huber^ 8, 203 (1873). Where one located mining ground 
m his own name, either acting as agent for another or in pursuance 
of a partnership with another, by which he agreed to prospect and 
locate mining claims for their joint benefit, he did so under an implied 


promise to convey to that other his interest upon request. The latter 
at once acquired a right to specific performance, which he might en- 
force without previous request. H., W. , G.^ and K. entered into a part- 
nership, by which it was agreed that the last three should furnish the 
means, and H. should prospect for and make location of a lode, in 
which all should be equally interested. H. located one thousand feet 
of mining ground, — four hundred in his own name and two hundred 
in the name of each of the others. W., G., and K. each conveyed two 
hundred feet to H., and subsequently declared that they had sold out 
their interests in the mine to H. This did not constitute a convey- 
ance of their interest in the four hundred feet which was located in 
H.'s name, and was no defence to an action for a conveyance thereot 





1. Diflcovery of Ore. 
II. Length of Time allowed after Dia- 
ooYery to perform Ada of Loca- 
IIL Location of Claims. 

A. Marking the Location on the 


B. Notice of Location; Poeting of 


C. Record of Location Certificato. 
(a.) Its Nature and Neceiaity. 
(6.) Contents of the Record, 
(c.) Verification of the Cerdflcate, 
(d,) Amendment of the Record. 

Additional Certificatea. 
(a.) Mistakes in tlje Record. 
(/) Requirements as to the Time 

and Place of 


I. DiscoYEBY OP Ore. 

^^ DiscoTEBT and appropriation are the sources of title to min- 
ing claims, and development bj working is the condition of their 
continued possession." Discovery is the first step in the location 
of the claim, or, more exactly, it is the precedent requisite to the 
location of a lode claim. The provision of the Rev. Stats. 2320 
is : ^^ No location of a mining claim shall be made until the dis* 
covery of the vein or lode within the limits of the claim located.*' 
No right can be acquired by location before discovery. It has 
been held that this rule does not apply in the case of placer 
claims which may be located without previous discovery of 

This decision, however, is not recognized in the Land Office, 
where it is held that discovery is as much a prerequisite of a 
placer location as of a lode location.^ 

Discovery in the case of lode claims may be defined as being 
the finding of ore or metalliferous rock in place in a defined vein 
or in continuous vein matter upon unappropriated land of the 
public domain. The finding of float or detached pieces of ore 
will not be considered sufficient discovery upon which to base a 

1 Gregory t. Perahbaker, 73 Cal. 109. r. Murray, 22 L. D. 409. And see Idaho^ 
* Rojal'K. Placer, 13 L. D. 86 ; FerreU Act liarch 6, 1895, sec 11, p. 26. 
T.^fl^e, I8L.D. 81; 19L.D. 568; Ram 


locatioiL It must be of ore in place ; but on the other band it 
has teen very properly held that the lode or vein discovered need 
not contain '^ pay " ore. It is sufficient if it contain even a trace 
of ore, if the rock in place is sufficiently encouraging to warrant 
an ordinarily prudent person spending his time or money upon it.^ 
Expert evidence is admissible to show that the vein is such as a 
miner would be likely to follow with the expectation of finding 
paying ore. 

Having made such a discovery, the discoverer is ehtitled to 
make a location upon it in order to preserve to himself the fruits 
of his discovery. But a discovery, though made by several per« 
sons, cannot be made the basis of the location of more than one 
clainL Discovery made subsequent to acts of location does not 
validate such acts, unless no adverse rights have intervened. 

The discovery must be within the limits of the claim located. 
There is a dictum of Justice Field in Erhart v. Boaro that a dis* 
covery outside the limits of the claim, provided its proximity 
and character are such as to justify a reasonable belief that the 
lode extends within the limits of the claim, entitles the discoverer 
to hold the land while completing his excavations to determine 
this fact and perform the necessary acts of location. Indeed, it 
has also been decided that the prospector can hold to the extent 
of Ills claim, if he remains in actual possession while hq is prose- 
cuting a search for mineral before the discovery of the same in 
place; but if he stand by and permit another to sink a shaft, or 
otherwise search for mineral within his boundary, and the latter 
first discovers the mineral, a location by the latter will take pre- 
cedence over his claim. 

It follows that when there is a dispute between locators as to 
territory which both claim; priority of proper location, based 
upon discovery of mineral in place, will take precedence ; or even 
in the case when both have located it, but neither has found 
mineral in the territory in dispute, it will be awarded to him who 
first finds it in place in the vein. It is true with regard to either 
of these propositions that it matters not where the mineral is 
found, whether outcropping or in a shaft, provided it extends 

^ Whfle tbe statements in the text are the test of the minenl character of the 

true as against sabseqnent locators, it is land is whether it can be mined profitabl/ 

questionable whether they are as against or not. See further, Chap. XIV., Div. L» 

Hricnltuxal claimants. In sncb^a contest  G., and Chap. XV., Dlt. I. , 


to the ground in dispute. A prior discovery in the shaft on the 
dip of the vein or the downward continuance beneath the surface 
will. confer a better title to the disputed territory than the sub- 
sequent discovery of the outcrop or apex of the vein within the 
boundaries of the same claim ; but this is not true if the discovery 
shaft in question is upon another, location, for the top or apex of 
a vein mvst be within the boundariee of the claim in order to en* 
able the locator to perfect hie location. The lode is the principal 
thing ; the surface ground is incident thereto* 

A discovery upon land already located will avail nothing. 
Such land is, of course, not unappropriated, and consequently not 
open to location. It is otherwise if the prior location is not 
a valid one. All that the law of the United States requires is 
the discovery of a vein or lode within the limits of the claim. 
This alone is sufficient. But the laws of the States and Territories 
may require something else to perfect a discovery (Rev. Stats. 
2824). In many States, accordingly, before the discoverer of 
ore may locate his claim, he must sink a discovery shaft of a 
•certain depth, or such tunnel, adit, or open cut as is defined 
to be the equivalent of such a shaft.^ 

The course recommended by the Land Office is that the claim- 
ant should, ^' prior to locating his claim, anless the vein can be 
traced upon the surface, sink a shaft or run a tunnel or drift to 
a sufficient 'depth therein to discover and develop a mineral-bear- 
ing vein, lode, or crevice ; should determine, if possible, the gen- 
eral course of such vein in either direction from the point of 
discovery, by which direction he will be governed in marking the 
boundaries of his claim on the surface." L. O. Regulations^ 
par. 14. 

„„.. - «♦..#.•• North Noonday Mining Co. v. Orient Mining Co.^ 
umtea states. ^ ^^ ^.^.^ ^^^^^^^ ^ ^ ^ ^^^ ^^ ^^^^^ ^^ ^ 

acquired under the statute by location before the discovery of a vein 
or lode within the limits of the claim located. 

Zollars V. Evans, 5 Fed. 172 (1880), C. C. D. Colo. The sinking 
of a shaft outside of the ground in dispute, and running drifts thenoe 

^ Arizona, Act March 80, 1895, mcs. 8611 ; 19ew Mexico, Comp. Laws 1884, i 

.% 5, p. 53; Colorado, M. A. 8., sees 3152, 1571 ; Act Feb. 5, 1889, p. 42; North Da> 

8154; Dakota, Comp. L. 1867, ch. 19, art. kota, Re^. Codes 189ft» aec. 14«^t ; Wj- 

1, Mrs. 2001, 2003 ; Idaho, Act Maroh 6, ommg. Laws 1888, ch. 40. aecs 17 and 18, 

1895, mc. 3 ; MioneKrta Gen. Stats. 1894, aroeaded bf aotof Jan. 8, 1891, aec. 8, oh. 

sec. 4067 ; Montana, PoL Code 1805, aec. 48, sk. 8. 


to file ground in dispute, will not avail the plaintiff in ejectment, unless 
be can further show the discovery of a lode in such shaft, with the ex- 
tension of the lode to the ground in dispute. 

Crosman v. Fendery, 2 McCrary,139 ; s. c. 8 Fed. 693 (1881),C. C. D. 
Colo. The prospector upon the public domain can hold to the extent 
of his claim in actual possession prior to the discovery of mineral in 
{»iace, but if he stand by and permit another to sink a shaft within his 
krandary, and the latter first discovers mineral, the claim of the latter 
will be the better claim. 

Van ZancU v. Argentine Mining Co.^ 8 Fed. 726, C. C. D. Colo. 
(1881). As between two locators, the boundaries of whose respective 
claims include common territory, priority of location confers the better 
titie, provided a vein in place was discovered in the discovery shaft, 
and provided, also, that it extended to the ground in controversy. 

Nor are the rights of the parties changed by the fact that the senior 
location was on &e dip of the lode, the junior on the top or apex. To 
establish a location it is necessary to show not only that ore was found 
ia the discovery shaft, but also that it is not broken and fragmentary, 
but a vein or lode, and that it extends to the ground in controveray* if 
nothing is found in the discovery shaft, the discovery of a body cif tne 
elsewhere in the claim will not avail.^ 

Jupiter 3iin. Co. v. Bodie Conaoi. Min. Co.^ 11 Fed. 696 (IBBl) 
C. C. D. Cal. No right can be acquired under the statute by locfttiov 
before the discovery of a vein or lode wifliin the limits of the claim 

lAtOe PitMurgh Con. M. Co. v. Amie M. Co., 17 Fed. 57 <ld88). 
A location of a mining claim cannot be made by sinking a disovrviy 
shaft upon another claim which has been previously located, mod wifakii 
is a valid location. 

Clteemnan v. Shreeve^ 40 Fed. 787 (1889), C. C. D. Colo. It is nqui- 
site to a valid location, and to the ownership of the title im a valid 
lode mining claim, that there shocild be discovery of ore, gold, or silver* 
bearing mineral in rock in place showing a well defined crevioe and a 
discovery shaft at least ten feet deep from the lowest rim thereof, which 
discovery of mineral must be at the point claimed and designated, or 
Bade the point of diseovery by the locators of said claim, and so desig- 
nated in the location certificate relied upon by them in the working of 
said location. 

Larkin v. UpUm^ 144, 19 (1892), affirming s. c. 7 Mont. 449. The top 
or apex of a vein must be within the boundaries of the claim in order 
to enable the locator to perfect his location and obtain title; but the 
apex is not necessarily a point, but often a line of great length. Any 
portbn of the apex on the course or strike of the vein found within the 
Ihnits of a claim is sufiident discovery to entitle the locator to obtain 
title ; for while the owner of a vein may follow it in its descent into 
another's territory beyond his own side lines, he cannot beyond his own 
end lines, and the vein beyond those end lines is subject to farther dis- 
eovery and appropriation. 

^ Thb statement^ of coone, is oonfloed corerj shafti. 8eo Wight t. Tdbtr, S I^ 
\a its afiplication to those States which D. 73S, helow. 
hsTe ststates reqairilig the shikiag of dit- 


Waterloo Min. Co. v. Doe, 56 Fed. 685 (1893), G. C. D. Cal. The 
use of an unclaimed piece of ground by a mining company for boildingg, 
and for the construction of a tunnel thereunder to aid in ihe working 
of the company's claim, does not initiate any right to the ground as ao 
independent mining claim. 

The fact that three tons of silver-bearing rock yielding $600 have been 
extracted from a mining claim does not entitle the locator to enter the 
claim for a patent when no vein or lode has been discovered within the 
limits of the claim, the location having been made merely in the hope 
of finding such at some future time. 

Book V. JtisHce M. Co., 58 Fed. 106 (1898), C. C. D. Nev. The 
statutes should be so construed as to protect locators of claims who 
have discovered rock in place, bearing any of the precious metals named 
therein in sufficient quantity to induce tiiem to expend their time and 
money in prospecting and developing the ground located. When the 
locator finds the rock in place containing mineral, he has made a dia* 
covery within the meaning of the statute, whether the rock or earth is 
rich or poor, whether it assays high or low. It is the finding of the 
mineral in the rock in place as distinguished from float rock t£at con^- 
stitutes the discovery, and warrants a location of a mining claim. 
Calif Gregory v. PersJibaker, 73, 109 (1887). The actual dia- 

^"^ *' covery of minerals before location is not essential to the 
validity of the location of a placer claim. 

Col rado W^ljley v. Lebanon M. Go. of N. F., 4, 112 (1878). The 
o ora o. ^^i^^pg] ^^^^ qi g mining location is that there must be a dis- 
covered lode within it, the locus of which on its onward course or strike 
is embraced by the boundaries of the claim. The surface ground and 
the lode are not independent grants. It is not the purpose of the act 
to grant surface ground without a discovered lode. The lode is the 
principal thing, and the surface ground incident thereto. 

Orayy. Truby, 6, 278 (1882). By sec. 7, Gen. Laws, p. 630, an open 
cut, a cross cut, a tunnel, and an adit are each made the equivalent of 
a discovery shaft While it is expressly provided that the first three 
shall cut the lode at the depth of ten feet below the surface, there is no 
such requirement in the case of an adit. 

** Our view is that while there is no express requirement of depth, 
the development must always be such in its dimensions and character 
as to make fairly the equivalent of a discovery shaft, and bring it sub- 
stantially within the meaning of the term * adit,* which Mr. Webster 
defines as being ^ an entrance or passage, a term in mining used to de^ 
note the opening by which a mine is entered, or by which water and ores 
are carried away : called also a drift.' " 

Armstrong v. Lower, 6, 393 (1882). The locator must sink his dis- 
covery shaft upon territory which he has a right to appropriate. If he 
sink it upon ground embraced in a prior, valid, and subsisting loca- 
tion, thpugh with the consent of the owners thereof, he is in no better 
, position than if he had not sunk the shaft. 

Electro Magnetic M. & D. Co, v. Van Auken, 9, 204 (1886). In 
sec. 7, Gen. Laws, p. 630, an adit, as to the ten feet requirement, may 
be either open or under cover, or open in part and under cover in part, 
depending upon the nature of the ground. Every adit upon a hillside, 


If continued, must enter cover at some distance from the point where 
excavation begins, the distance depending on the inclination of the sur- 
face. Supposing the lode to outcrop, the point where the excavation 
enters cover and the point where the lode is discovered, would never 
concnr, except where the ground presented a perpendicular face. The 
latter point, not the former, is the point from which the development 
is to be measured. 

Pdican A Dives M. Co. v. Snodgmss^ 9, 839 (1886). One who makes 
a discovery of mineral, and runs a tunnel thereon, and does no other 
aet towards completing the statutory location, and for four years does 
not labor thereon, acquires no interest therein as against intervening 
rights. Nor can he after the four years perform the remaining acts 
necessary to a statutory location, and have them relate back to the 
original discovery, tliere being intervening rights. 

The party who first discovers a vein and posts his discovery notice, 
following such acts with the remaining acts necessary to a valid location 
within the time prescribed by law, is entitled to the vein as against a 
subsjoquent discoverer who succeeds in first completing all the requisite 
acts of location. 

Oraig v. Thompson^ 10, 517 (1887). Where a discovery cut is along 
the vein, the statutory requirement as to depth of adits applies, and not 
tiiat as to. open cuts. 

McLaughlin v. Thompson, 29 Pac. 816 (1892). No interest can be 
acquired by sinking a shaft to the depth of ten feet and putting up 
stakes, unless mineral is discovered in the shaft Such a location is 
absolutely worthless for any purpose. 

« CMden Terra Co. v. Smithy 2, 377 (1881). A vein is dis- 

^ * covered when there is discovered a well defined lode of rock 
in place carrying gold, which lode subsequently proves continuous. 
The existence of a wall rock at the place of discovery is not neces- 
sary; nor is it necessary that the rock should contain pay ore. Per 
Dist. Ct. 

This, it would seem, must have met the approval of the Supreme Court. 
Idah Burke v. McDonald, 33 Pac. 49 (1890). Beatty, C. J.: 

®* "The practice of posting notices upon any ground within 
which the existence of a ledge may be imagined has become so com- 
mon that the emphatic requirement of the law that a ledge discovery 
must initiate the location of a claim is nearly forgotten. The courts 
will insist upon and enforce this most important provision of the law 
whenever opportunity offers." 

Foots V. National M. Co., 2, 402 (1876). "A lead or 
^ ** lode is not an imaginary line without dimensions; it is 
not a thing without shape or form, but before it can legally and right- 
fully be denominated a lead or lode it must have length and width and 
depth; it must be capable of measurement; it must occupy defined 
space, and be capable of identification. Before a quartz claim can be 
legally located, a lead or lode containing gold or silver must be discovered, 
'and before such discovery can be called a discovery, at least one weU 
defined waU or side to the lode must be found. What, then, is a quartz 
lode? It is a fissure or seam in the country rock filled with quartz 
matter bearing gold or silver* This fissure may be wide or narrow ; 


it varies in width from one inch or even less to one hundred feet o# 
mach more. The sides of a lead are represented and defined by the 
walls of the ooantry rock ; and these walls must be discovered and the 
lead identified thereby before it can be located and held as a lead." 

Upton V. Larkiiiy 5, 600 (1885). A location of a mining claim void 
at the time it was made because of no discovery continues void, and 
is not cured or made effectual by a subsequent discovery, providing 
rights have accrued. 

(yDoniiell V. Glenn, 8, 248 (1888). A location is not invalid be^ 
cause the locator puts up a notice at the shaft, which contains no 
mineral, when he has discovered mineral at another point in the veiOt 
which is covered by his location, the boundaries of which can be 
readily traced and the claim identified. 

The law does not require a discovery shaft, bid only a genuine di9^ 
covery of a mineral-bearing vein, wUh at least one well defined wlU, 
and such a description of it in the declaratory statement of record as 
will identify it, and enable a person to easily trace its boondariee. 
Evidence of discovery outside the discovery shaft is, therefore, admis- 
sible in an action on an adverse claim. 

Flick V. Gold HiU & Lee Mt. M. Co., 8, 298 (1889). The vaHdi^ 
of Comp. Stats. 1889, sec. 1479, div. 5,^ requiring a discovery of a vein 
or crevice of quartz or ore, with at least one well defined wall before 
recording notice of location, is doubtful, as conflicting with the Ozganio 
Act of the Territory by which the passage of an. act interfering with 
the primary disposal of the soil is prohibited. 

Shreve v. Copper Bell M. Co., 11, 309 (1891). A paying lode need 
not be discovered to entitle a locator to his claim. It is sufiScient if 
the lode contain such indications of minerals that he is willing to spend 
his time and money in expectation of finding ore sofficiently valoaUe 
to work. By De Witt, J., dissenting on other questions. 

McDonald v. Montana Wood Co., 14, 88 (1893). One discovery is 
sufficient to hold a placer location of one hundred and sixty acres by an 
association. It ia not necessary to make a discovery on each itnct 
of twenty acres.' 

Davidson v. Bordeaux, 15, 245 (1894). A locator need not show 
that he made assays of the vein, when no one dispates the prima fade 
riiowing by the evidence of the prospector that the vein was a good 
one, and appeared to be sufficientiy good to justify locstiilg and 
working it. 

McShane v. KerMe, 44Pac. 979 (1896). In order to oonstitiite a 
Valid discovery it is not necessary that the vein should contain mineral 
of such a nature that the practical miner would be Justified in following 
it up and developing it. It is sufiicient if it carries, enough mineral 
to justify the locator in expending time and money in prospecting and 

The testimony of mining men is admissibie in the detenninatioii af 
this fact. 

It is not reqnired that the paying mineral should be found at the 
tiBM and place of diaooverv, if the development shows that it exiata 
wMun tiie limits of the location. 

^ This Mction wii not ra-enacted in * To the contnufj* FemU V. Boge, 19 
lbs Code of 1895. L. D. 568. 


J- -^ Ovennan S. M. Co. v. Corcoran, 15, 147 (1880). No valid 
location of a mining claim can be made until a vein or de- 
posit of gold, silver, or metalliferous ore or rock in place has been 

Southern Cro88 G. A S. M. Go. v. Europa M. Co.^ 15, 888 (1880). 
The results of assays of rock taken from a mining claim long after the 
date of its location are competent evidence to show that locators dis- 
ooTered a vein at the time of the location. 

-^^ Harrington v. Cliambera^ 8, 94 (1881). The word "lode** 
^ * in the act of Congress prescribing a discovery before location 
bas the meaning given it by the miner; viz., *^ Whatever the miners 
oould follow and find ore." 

^^ I have long thought, and still think, that . . • a valid locf^tion of a 
nnniog claim may be made whenever the prospector has discovered such 
indication of mineral that he is willing to spend his time and money in 
fbllowing it in the expectation of finding ore, and that a valid location 
may be made of a ledge deep in the ground, and appearing on the sur- 
face, not in the shape of ore, but in vein matter only." 

Expert testimony is admissible to show that a claim contained such 
a vein as a miner discovering it would be likely to follow with the 
reasonable expectation of finding paying ore. 

Where the question of discovery is in dispute, testimony is admissible 
to show indications of ore or vein matter at other points on the surface 
of the claim than at the place marked ^* Discovery." 

Land Office Decisions. 

The act of Congress of Jan. 22, 1880, does not annul the pro* 
Tisions of the State law of Ck)lorado, which requires a discovery shaft 
to be sunk within a certain number of days from date of discovery. 
Copp, 290 (1880). 

It is not necessary that mineral be discovered in the discovery shaft 
if it is discovered within the limits of the claim before adverse rights 
attach. After entry, where there is no fraud, and in a question be- 
tween the government and applicants only, if it becomes necessary 
in order to support the entry to find that applicants had mineral in 
toeir discovery shaft, it will be so found in all cases where the evi- 
dence is conflicting. WigJU v. Tabor, 2 L. D. 738 (1884). 

A location made after May 10, 1872, based on a discovery made 
within the limits of a claim properly located, and not abandoned or 
lost by failure to perform the labor thereon required by law, is an 
invalid location. 

If such prior location is not a valid one, or if it was a valid one at 
its inception, and the locator has not performed the required amount of 
labor thereon, a discovery made within the boundaries thereof before 
work has been resumed thereon under the statute may become the basis 
of a lesral location. It does not, therefore, necessarily follow that a 
discovery made within the boundaries of a prior location is not a valid 
location ; that must be determined by fii*st ascertaining the status of 
the orisjinal location at the time the second location was made. JBran* 
agan v. Dulaney, 2 L. D. 744 (1884). 


. Although prior to location no diBCOvery of mineral was made within 
the ground claimed, upon a subsequent discovery prior to applica- 
tion for patent the location became good and sufficient, in the absence 
of any adverse rights. MUdvell, 2 L. D. 752 (1884). 

Where it appears that discovery and improvements are upon adjoin- 
ing or conflicting land already patented to others, application for 
patent wiU be denied. Spur Lode^ 4 L. D. 160 (1885). 

Patent will not issue on an application wherein the land upon which 
the discovery shaft and improvements are situated is expressly 
excepted therefrom, and the proof fails to show the discovery or 
existence of mineral on the claim as entered, or the requisite expen- 
diture for the benefit thereof. ATUediluvian L, & M, Site, 8 L. D. 
602 (188?) ; Lone Dane Lode, 10 L. D. 53 (1890). 

A discovery, though made by two persons, is but a single discovery, 
and but one location can be based upon it. It is not susceptible of 
subdivision for the purpose of two locations, haviqg a common end 
line that bisects the discovery shaft. Poplar Creek Con, Q, Mine, 16 
L. D. 1 (189a). 

Discovery within the limits of a lode claim is a prerequisite to the 
location thereof. A properly corroborated protest alleging that there 
was no discovery is ground for a hearing, although the deputy sur- 
veyor's report shows the existence of ores in various parts of the 
claim. Waterloo M. Co. v. Doe, 17 L. D. Ill (1893). 

Where minerals have been found, and the evidence is of such a char- 
acter that a person of ordinary prudence would be justified in the 
further expenditure of his labor and means, with a reasonable pros- 
pect of success in developing a valuable mine, the requirements of the 
statute have been met. Castle v. Wbmble, 19 L. D. 4^5 (1894). 

There must be a discovery on each twenty acres in a placer claim 
of one hundred and sixty acres made by an association. Ferrell v. 
Hoge, 19 L. D. 568 (1894) ; Louise Min. Co., 22 L. D. 663 (1896); 
Union Oil Co., 23 L. D. 222 (1896). ^ ' 

An entry will not be allowed when the discovery is within the limits 
of a prior patented lode claim. Edw. W. WiUiams, 20 L. D. 458 
(1895) ; Winter Lode, 22 L. D. 362 (1896). 

In a contest between mineral claimants, where one alleges that the 
claim of the other was not based on a valid discovery, the latter is 
not bound to show the existence of a valuable deposit of mineral. 
The government does not inquire into the value of mineral deposits 
except in contests between mineral and non-mineral claimants. Tarn 
V. Sto7-y, 21 L. D. 440 (1895). 

Discovery is a necessary prerequisite to the location of a placer 
claim. The fact that the land has been returned as mineral does not 
avoid this necessity. Beins v. Murray, 22 L. D. 489 (1896). 

II. Length of Time allowed after Discovert to perform 

Acts of Location. 

A discovery being made, the discoverer is entitled to retain 
undisturbed possession for a reasonable length of time to com* 

1 To the contrary, McDonald y. Montana Co,, 14 Mont. 88, 


idete the acts of location required by law. What length of time 
is allowed for this purpose is not fixed by the law of the United 
States, but is left to the law of the State or the regulations of the 
district. In the absence of such determination a reasonable time 
is allowed to the locator, and what this is depends upon the cir- 
cnmstances connected with the claim and affecting the locator's 
ability to define it It may be stated broadly that he must not 
sleep upon his right, but must proceed with due diligence to 
develop his property. 

A fixed time is prescribed in many States.^ The locator's pos- 
session during this time must be undisturbed. One who by force 
or threats prevents the performance of the acts of location during 
the statutory period will not be allowed to take advantage of the 
locator's failure. 

United States ^rhardt v. Boaro, 113, 527 (1884). Field, J. : 

"Whenever preliminary work is required to define 
and describe the claim located, the Jirst discoverer must he protected in 
the possession of the claim urUil sufficient excavaiions and development 
can be made so as to disclose whether a vein or deposit of such ricJiness 
exists as to justify work to extro/^t the meted. Otherwise the whole pur- 
pose of allowing the free exploration of the public lands for the 
precious metals would in such cases be defeated, and force and vio- 
lence in the struggle for possession, instead of previous discovery, 
would determine the rights of the claimants. . . . And the laws of 
the United States do not prescribe any time in which the excavations 
necessary to enable the locator to prepare and record a certificate 
shall be made. That is left to the legislation of the State (Colorado), 
which prescribed sixty days for the excavations upon the vein from 
the date of recovery, and thirty days afterward for the preparation of 
the certificate and filing it for record. In the judgment of the legisla- 
tnre of that State this was reasonable time. This allowance of time 
for the development of the character of the lode or vein does not, as 
intimated by counsel, give encouragement to mere speculative loca- 
tions, that is, to locations made without any discovery or knowledge 
of the existence of metal in the ground claimed, with a view to ob- 
tain the benefit of a possible discovery of metal by others within that 

^^ A mere posting of a notice on a ridge of rocks cropping out of 
the earth or on other ground, that the poster has located thereon a 
mining claim, without any discovery or knowledge on his part of the 

1 Sixty dajB in Colorado, M. A. S.. see. ico. Act Feb. 5, 1889, p. 42 : Three months 

3155; N. Dakota, Rot. Codes 1895, sec. in Minnesota, Gen. Stats. 1894, sec. 4067: 

1433; S. Dakota, Comp. L. 1887, ch. 19, Three days to mark boundaries, sixty days 

art. 1, sec. 2,004 ; Wyoming, Act Feb. 21, to sink shaft, arid ninety days to record cer- 

1895, p. 247 : Ninety days in Arizona, Act tiflcate in Idaho, Act March 20, 1895, sees. 

March 20, 1895, sec 6, p. 53; Montana 2-4, p. 26. 
PoL Code, 1895, sees. 3611-2 ; New Mex- 


exutenoe of metal there, or in its immediate vicinity, woald be jnstiy 
treated as a mere speculatlYe proceeding, and would not itself iuitiats 
any right There mast be something beyond a mere gness on the part 
of the miner to authorize him to make a location which will exclude 
others from the ground, such as the discovery of the presence. of the 
precious metals in it, or in such proximity to it as to Justify a reason- 
able belief in their existence. Then protection will be afforded to the 
locator to make the necessary excavations, and prepare the proper cer- 
tificate for record. 

^^ It would be difficult to lay down any roles by which to distinguish 
a speculative location from one made in good faith with a purpose to 
make excavations and ascertain the character of the lode or vein, so 
as to determine whether it will justify the expenditures required to ex- 
tract the metal ; but a jury from the vicinity of the daim will seldom 
•rr in their conclusions on the subject" 

Doe V. Waterloo M. Co.^ 70 Fed. 455 (1896), C. C. Ap., 9th Circ., 
affirming s. c. 55 Fed. 11. N. discovered a metal-bearing lode, and 
on the same day erected a monument and posted thereon a written 
notice: ^^I have this day located and claimed fifteen hundred feet 
on this lead or lode running one thousand feet northwesterly and five 
hundred feet southeasterly, with three hundred feet on each side for 
mining purposes. I also claim the legal time of twenty days to com- 
plete my boundary monuments." Eleven days thereafter W. and Y. 
located and set up the boundary monuments of a conflicting claim, 
and while doing so saw N.'s notice, but did not take the trouble to go 
and read it. Subsequently, but before the expiration of the twenty 
days, the transferees of part of N.'s interest (he being prevented by 
illness) marked the location on the ground and set up boundary monu- 
ments. The location of W. and Y. was invalid. 

The discoverer of a vein is entitled to a reasonable time within 
which to complete his location. What is a reasonable time depends 
upon the circumstances affecting the ability of the locator to properly 
define his claim. His illness is not one of these circumstances. They 
are such as pertain to the ground to be located, its character, the 
means of properly working the ground, and the ability to properly 
ascertain the dimensions and course or strike of the vein. In this 
case, where the ground was upon a rough mountain side, the vein was 
exposed for four hundred feet in one place and forty in another and 
for the rest of its length covered, and the dip was not exposed; 
twenty days was not unreasonable. 

Patterson v. Hitchcock^ 3, 5^3 (1877). The discoverer of 

o era o. ^ lode, by virtue of that discovery becomes entitled to a 
reasonable length of time in which to perfect the work required by law, 
and for that time lie is permitted to retain possession of tlie property 
without interference; and the law protects him in his possession while 
the work of development goes on as well as after the development is 
completed, but in the meantime his work mtist progress tcith reasonable 
diligence. What is to be regarded as a reasonable time to occupy in 
sinking a discovery shaft in the manner and to the depth required by 
law is, when the facts are undisputed, a question of law. But when 
the question is submitted to the jury with the instruction that ninety 


ditys is not a reasonable time, he against whom the verdict is found 
cannot conm)lain if the jury determine that less than ninety dayi 
(eighty-five days) was a reasonable time. The discovery was made in 
this ease before the act of Feb. 13, 1874, went into effect. 

Miller v. Taylor^ 6, 41 (1881). In an action for restitution of 
mining property, the plaintiffs alleged that they have been ousted of 
their possession before the expiration of the time within which they 
had to comply with the statutory requirements of marking, locating, 
and recording their claims, and that they were prevented by the 
threats of the defendants from complying with these requirements. 
A demurrer on the ground that the plaintiffs in their complaint did 
not show a compliance with the statutory requirements was overruled. 
One who prevents a thing's being done may not avail himself of the 

Onmr v. Soperj 11, 380 (1888). The object of the statute in giving 
sixty days for sinking the discovery shaft was evidently to afford the 
miner time to sink his shaft, and to ascertain the true course of his 
lode, when he would be qualified to mark its boundaries on the sur- 
face. During this period, if notice is posted, which in addition to the 
statutory requirements specifies the extent of territory claimed along 
the vein on both sides of the point of discovery, a claim is protected 
throughout its whole extent from invasion and adverse claims. No 
one can lawfully enter upon it during the period for the purpose of 
initiating a claim, nor can any one in any manner initiate a claim there- 
to capable of being rendered valid in the future by the happening of 
fortuitous circumstances; as by sinking a discovery shaft, and locat- 
ing another claim which overlaps the first. 

j^j^ Burke v. McDonaM, 33 Pac. 49 (1890). Beatty, C. J. : 

^' " The law does in its liberality allow the prospector after the 
discovery of his vein a reasonable time in which to develop its course, 
and then mark accordingly the boundaries of his claim ; but it does 
not permit him, after having posted his notice, to leave his claim in- 
complete, and going in quest of other claims post his notice here and 
there over the country, to the exclusion of other prospectors, and at 
his leisure prospect and mark out his claims. While no hardship or 
nnosual exertion is required of him, good faith and reasonable dili- 
gence are." If after posting notice a discoverer leaves for four days, 
during which time he posts fifteen other claims, his rights will not be 
protected against intervening locators. 

Vevada ^^«««»i ▼• Martin White M. Co., 13, 442 (1878). «' A 

location on a vein must be made by taking up a piece of land 
to include it. No other means are provided, and it is only upon con- 
dition of complying with the law that the locator becomes entitled to 
do anything. The discoverer of a vein may be allowed a reasonable 
time to trace its course before being compelled to define his surface 
claim, and in the meantime may be protected in his claim to fifteen 
hundred feet of the vein, but his location will never be complete until 
his surface claind is defined." 

In the absence of State or local regulation of the time to be allowed 
for tracing the boundaries, a reasonable time, to be determined from 
the circumstances of each case, will be allowed. 



TaUerson v. TarbeUy 26, 29 (1894). • Bean, J. : " The di»- 
Oregon, ^ygrgj. Qf ^ Iq^q q^ ygjn Qf ^q^jJ^ Jjj place bearing precious 

metals, in the absence of some local rule of miners or legislative regu- 
lation allowing some time for exploration, must inunediately locate his 
claim by distinctly marking the same on the ground, so that its bound- 
aries can be refulily ascertained, in order to hold it against a subse- 
quent valid location peaceably made." 

Defendant made discovery, and instead of marking his location, 
merely posted a notice and continued his explorations for the purpose 
of determining the course of the lode. After a few days he left the 
ground for a short time to obtain a surveyor, and in his absence 
plaintiffs entered and marked a location which took in part of the 
ground claimed by defendant. The plaintiffs' location was held to be 

^^ A discoverer of a vein or lode who proceeds diligently, in good 
faith, to complete his location by marking its boundaries on the 
ground and otherwise complying with the law, will no doubt be pro- 
tected in his rights as against a subsequent locator of the same 
ground; but no claim is made in this case that defendants did not 
have ample time and opportunity after their discovery and before 
plaintiffs' location in which to complete their location by marking the 
boundaries of the dlalm on the ground and posting the notice required 
by the statute. Their contention is that they were entitled to a 
reasonable time after the discovery in which to continue their explora- 
tions and trace the course or strike of the vein or lode. As there are 
no local rules or regulations governing this matter, and the act of 
Congress is silent on the subject, the question, it seems to us, depends 
upon whether mere possession and exploration are sufficient to give to 
the discoverer a right to hold a mining claim against one who peace- 
ably enters and makes a valid location." Discovery and appropria- 
tion are both conditions precedent to the right to occupy, and all the 
acts of location, one of which is the marking on the ground, must be 
complete before there is a right of possession as against the United 
States or its grantee. 

a 4.K Tk u 4- Marshall v. Harney Peak T. M. M. <fc M. Oo.^ 1, 

eoutn oaitota. g-Q (1890). Plaintiffs made discovery on July 81, 

1884, and on the same day posted a notice giving the dimensions and 
directions of the claim. They did nothing more until Sept. 21, 
1884, when they marked the location, and on September 28 recorded 
their location certificate. Defendant made an alleged location of part 
of this claim on Sept. 19, 1884. 

By Compiled Laws, sees. 1999, 2001, 2003, 2004, plaintiff had sixty 
days from the date of discovery in which to perform the acts of loca^ 
tion prior to the record. The acts of the plaintiff on July 31 consti- 
tjited a valid appropriation which withdrew the claim from location by 
others for sixty days and during that time vested the possession in the 


III. Location of Claims. 

A discovery having been made, the ground is open to location 
as a mining claim, that is, in the language of Rev. Stats. 2819, 
to occupation under regulations prescribed by law and according 
to the local customs or rules. 

Location consists of the performance of certain acts which 
were commonly recognized by the customary law to be requisite 
and sufficient to establish a valid possessory title. The manner 
of location is by the law of the United States referred to the regu* 
lations, not in conflict with the laws of the United States, made by 
the miners of each mining district, subject, however, to certain 
requirements as to marking the claim and the contents of the 
record. The former being the only step in the location for which 
the laws of the United States, unaided by State or local legisla- 
tion, lay down a rule, will be ' first discussed. The other steps in 
the location are the posting of notice, the filing and recording of 
a certificate, which are not made essential by acts of Congress, 
but are generally required by the laws of the States and Terri- 
tories or by the district regulations. 

A. Marking the Location on the Oround, 

The provision of Rev. Stats. 2824 is as follows: ''The 
location must be distinctly marked on the ground, so that its 
boundaries can be readily traced." This does not necessitate 
the marking of the boundaries. It is the location that must be 
marked, that is, designated by some means, so that any one visit- 
ing the ground and honestly endeavoring to do so can readily 
trace the boundaries of the location already made. All the act 
of Congress intends, is that a person seeking to make a subse- 
quent location may be able to do this. This is the test. It fol- 
lows, of course, that it is incumbent upon the locator to keep, up 
his artificial boundary posts or monuments after they have been 
made ; but after, by the performance of all the necessary acts of 
location, the full possessory title has vested in the locator, his 
right cannot be divested by the obliteration or removal of his 
marks without his fault ; and proper marking will be presumed 
from its recital in the recorded location notice. And after the 


lapse of a long time, during which marks or boundaries may rea- 
sonably have become defaced or obliterated, every presumption 
will be made in favor of the validity of the location. 

The failure, however, to mark the location as required is abso* 
lutely fatal to its validity. The designation must be made by 
distinct marks upon the ground. A posted notice defining boun- 
daries is not a mark on the ground. The law of the United 
States does not define what kind of marks shall be made or where 
they shall be placed. Whither the marks are such that tiie 
boundaries may be readily traced is a question of fact to be de« 
termined by the jury from the circumstances of each case, par«> 
ticularly the nature of the ground. This question, however, may 
be determined by legislation by the State or the regulations of 
the miners, who may specify the nature, kind, and number of 
marks or monuments that the locator must erect to establish his 
location. In some of the States there are statutory requirements 
that the marking shall be by posts, or stakes, or monuments of 
rock, and the nature, size, and position of those are generally 
defined in detail.^ In Colorado,^ Montana,' and New Mexico,^ the 
removing of such stakes is a misdemeanor. 

The Land Department recommends that the claimant ^ should 
drive a post or erect a monument of stones at each corner of his 
surface ground.*' L. 0. Begs., par. 15. 

Difficulty of access does not excuse failure to set proper stakes. 
But where a part of the ground is inaccessible, the validity of the 
location is not affected by failure to mark the location, provided 
the accessible part of the ground is so marked as to indicate to 
one honestly endeavoring to ascertain where the boundaries are. 

A locator cannot, after location, change the lines of his claim 
so as to take in other ground, if his so doing will interfere with 
the previously accrued rights of others. But the validity of his 
location is unaffected by a slight variation between his lines as 
marked and a subsequent actual survey for a patent. If there is 
no conflict with the rights of others, he may even make a consid- 

^ Arizona, Act March 20, 1895, sees. Feb. .5, 1889, sees. 2, p. 42 ; North Dakota, 

3 and 4, p. 53 ; Colorado, M. A. $., 3152, Rev. Codes 1895, sees. 1430-1 ; Wjoming, 

3153; Dakota, Comp. L. 1887, ch. 19. art. Laws 1888, ch. 40, sec 17. 
1, aec8. 2001-2; Idaho, Bey. Stats. 1887, > M. A. S. 1423. 
aecs. 3100, 3101, 3121, amended by Act * Comp. Stats. 1887, 5th diT., 

March 5, 1895, p. 26; Minn. Gen. Stats. 1482. 
1891, sect. 3665-6 ; New Mexico, Act « Act Feb. 5, 1889, aec. 5, p. 42. 



erable change, to conform his lines to the course of his vein as 
disclosed by exploration. In fixing the boundaries of placer 
claims, it should be remembered that they must conform to the 
legal subdivisions of the public lands, where these have been sur- 
veyed. Rev. Stats. 2329. 

TT If- ;i ttf- 4- North Noonday Mining Co, v. Orient Mining Co,y 

umtea states. ^ ^^ ^^^ (1880), C. C. D. Cal. A location of a 

mining claim must be distinctly marked on the ground, so that its 
boondaries can be readily traced ; but the law does not prescribe or 
define what kind of marks shall be made, or upon what part of the 
groaud or claim they shall be placed. 

Any marking on the ground claimed by stakes, mounds, and written 
notices, whereby the boundaries can be readily traced, is sufficient. 
If the centre line of the location of a lode claim, lengthwise, be marked 
by a prominent stake or monument at each end thereof, upon one of 
which is placed a written notice showing that the locator claims the 
length of said line upon the Jode, from stake to stake, and a specified 
nomber of feet in width on each side of said line, such location is so 
marked that the boundaries may be readily traced, and, so far as the 
location is concerned, is a sufficient compliance with the law. 

Jupiter M, Co. v. Bodie Con. M. Co., 11 Fed. 677, 7 Sawy. 96 
(1881), C. C. D. Cal. ^^ To make a valid location under the statute, 
it is required that the location must be distinctly marked on the 
ground so that its boundaries can be readily traced ; ' but the law does 
not define or prescribe what kind of marks shall be made, or upon 
what part of the ground or claim they shall be placed. 

^^ Any marking on the ground claimed, by stakes and mounds, and 
written notices, whereby the boundaries of the claim located can be 
readily traced, is sufficient. But there must be some such marking, 
and when a mining claim is once sufficiently marked out upon the 
ground, and all other necessary acts of location are performed, it vests 
the right of possession in the locator, which right cannot be divested 
by the obliteration of the marks or removal of the stakes without the 
fault of the locator so long as he continues to perform the necessary 
work upon the ground and to comply with the law in other respects." 

CroRsus Mining Co. v. Colo. Land & Mineral Co., 19 Fed. 78 
(1884), C. C. D. Colo. The statute of Colorado affords no support to 
one who, locating his claim, fails to set the proper stakes at the end 
of the claim, when the proper position for them was not inaccessible, 
but merely difficult of access, or approachable by a circuitous route. 
In such case the title will only relate to the time when the stakes are 
subsequently set. 

The locator of a mining claim cannot, after the location, change the 
lines of his claim so as take in other ground when such change will 
interfere with the previously accrued ris:hts of others. 

Book V. JvMic^ M. Co., 58 Fed. 107 (1893), C. C. D. Nev. In 
this case posts two by four inches and four feet high, driven into the 
ground, or held up by monuments of stone at the corners of the claims^ 


were held sufflcieDt. ^^ The question as to the sufficiency of the stakes 
and monuments to enable the location to be traced always depends to 
a great extent upon the conformation and condition of the ground 
located. A location ona hill covered by a dense forest might require